Revised Model Standards of Conduct for Mediators
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revised standards of conduct for mediators

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ABA, AAA,and ACR Adopt Revised Model Standards of Conduct for Mediators                                       

By Bruce E. Meyerson

 

              The Model Standards of Conduct for Mediators, initially approved in 1994 (the “1994 Standards”) by the American Bar Association Section of Dispute Resolution, the American Arbitration Association, and the former Society of Professionals in Dispute Resolution (SPIDR”) are considered a foundational set of ethical guidelines for mediator practice.  Since the adoption of those standards, the growth of mediation has been nothing short of phenomenal.   Similarly, there has been exponential growth in the regulation of mediation with over 2200 state and federal statutory provisions and court rules, and adoption in a number of states of the Uniform Mediation Act.

 

              Because of these changes, the three organizations that created the 1994 standards believed it was time again to look at the underlying framework of mediation and reexamine the standards.  The result of that effort has been to revise the Model Standards effective September 2005 (the “2005 Standards”).  The 2005 Standards have been adopted not only by the American Arbitration Association, and the Association for Conflict Resolution (the successor to SPIDR), but also by the ABA House of Delegates, in addition to the Section of Dispute Resolution.

 

              Each of the three organizations appointed two representatives to serve on a drafting committee, known as the Joint Committee.  In addition a professor at the Ohio State University College of Law served as the reporter.    The Joint Committee not only met on numerous occasions but also actively solicited and listened to extensive public comment.  In approaching their task of reviewing the 1994 Standards, the Joint Committee adopted the following guidelines:

 

A. The three-fold major functions of the 1994 Standards--to serve as a guide for the conduct of mediators; to inform the mediating parties; and to promote public confidence in mediation as a process for resolving disputes--should remain unchanged.

 

B. The Standards should retain their original function of serving as fundamental, basic ethical guidelines for persons mediating in all practice contexts while simultaneously recognizing that mediation practice in selected contexts may require additional standards in order to insure process integrity.

 

C.    The basic architecture of the 1994 Standards should be retained. Where

possible, the original concepts should be retained, but changes should be made to

correct, clarify or respond to new developments in mediation practice.

 

 D. Each Standard should target fundamental, ethical guidelines for mediators and exclude references to desirable behaviors or "best practices" in the statement of a Standard.

 

E.  The process for conducting the Joint Committee's review of the 1994 Standards Version should be accessible by the various publics interested in and affected by the practice of mediation.

 

F.     Any changes to the Standards should be supported by a consensus of all Joint Committee members.

 

 

              The following discussion sets out the 1994 Standards and the 2005 Standards and then highlights the significant changes and policy issues.  The 1994 Standards had extensive ”Comments”  following each standard.  In the 2005 Standards, those Comments were removed, but the standards themselves have been expanded to incorporate the concepts contained in the Comments.   In this article, only the 1994 Standards themselves have been included, and not the Comments.  To compare completely the 2005 Standards with the 1994 Standards, however, one should consider the Comments along with the 1994 Standards.

 

              Another resource which should be considered in understanding the 2005 Standards is the Reporter’s Notes.  These notes provide additional commentary, insight and background into the changes made in the 2005 Standards.  These notes are available at the website of the Ohio State University College of Law.

 

Analysis of the Revisions to the Model Standards of Conduct for Mediators

 

              Preamble and Note on Construction  

 

              The 1994 Standards explained that a mediator “facilitates communications, promotes understanding, focuses the parties on their interests and seeks creative problem solving to enable the parties to reach their own agreement.”   The 2005 Standards in a new Preamble, modify this concept stating that “[m]ediation serves various purposes, including providing the opportunity for parties to define and clarify issues, understand different perspectives, identify interests, explore and assess possible solutions, and reach mutually satisfactory agreements, when desired.”   Thus, the 2005 Standards appear to articulate a more expansive description of mediation that focuses more on defining a process that meets the parties’ needs, rather than a somewhat narrower vision of mediation that seems to draw almost exclusively on a facilitative approach.

 

              The new Note on Construction makes several additions.  First, the Note recognizes that aspects of mediation may be affected by applicable laws, court rules, regulations or other professional rules.  Where these conflict with the 2005 Standards it is understood that they may take precedence over them.

 

              Because the Standards use the words “shall” and “should” with respect to creating obligations for a mediator, the Note on Construction define these terms.  “The use of the term ‘shall’ indicates that the mediator must follow the practice described.  The use of the term ‘should’ indicates that the practice described in the standard is highly desirable, but not required, and is to be departed from only for very strong reasons and requires careful use of judgment and discretion.”   This is a significant change from the 1994 Standards and an improvement because a mediator’s mandatory obligations are made clear as distinguished from those duties that are only encouraged.

 

              The Note on Construction also recognizes that unless adopted by a court or regulatory authority, the 2005 Standards do not have the force of law.  Nevertheless, the Note admonishes mediators that it is certainly possible that regulatory authorities may look to the Standards to establish a standard of care for mediators.  Thus, where claims for malpractice are made against mediators it is very possible that claimants will use the 2005 Standards as a basis for such claims.

 

              Standard I: Self-Determination

 

              The 1994 Standard on Self Determination provided:

 

Self-determination is the fundamental principle of mediation.  It requires that the mediation process rely upon the ability of the parties to reach a voluntary, uncoerced agreement.  Any party may withdraw from mediation at any time.

 

The 2005 Standards revised Standard I as follows:

 

A. A mediator shall conduct a mediation based on the principle of party self-determination. Self-determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome. Parties may exercise self-determination at any stage of a mediation, including mediator selection, process design, participation in or withdrawal from the process, and outcomes.

 

1.     Although party self-determination for process design is a fundamental principle of mediation practice, a mediator may need to balance such party self determination with a mediator's duty to conduct a quality process in accordance with these Standards.

 

2. A mediator cannot personally ensure that each party has made free and informed choices to reach particular decisions, but, where appropriate, a mediator should make the parties aware of the importance of consulting other professionals to help them make informed choices.

 

  • A mediator shall not undermine party self-determination by any party for reasons such as higher settlement rates, egos, increased fees, or outside pressures from court personnel, program administrators, provider organizations, the media or others.

 

There are two significant changes made in the 2005 Standards.  The 1994 Standards treated self-determination as an issue exclusively concerned with the outcome of the mediation.  The 2005 version of Standard I expanded this concept to such issues as mediator selection, and the mediation process itself.  Revised Standard I also acknowledges the relationship among the Standards recognizing that conflicts may arise between the goal of self-determination and other obligations of the mediator.

 

STANDARD II: IMPARTIALITY

 

              The 1994 version of Standard II stated:

 

              The concept of mediator impartiality is central to the mediation process.  A mediator shall mediate only those matters in which she or he can remain impartial and evenhanded.  If at any time the mediator is unable to conduct the process in an impartial manner, the mediator is obligated to withdraw.

 

The 2005 version of Standard II provides:

 

A. A mediator shall decline a mediation if the mediator cannot conduct it in an impartial manner. Impartiality means freedom from favoritism, bias or prejudice.

 

B.  A mediator shall conduct a mediation in an impartial manner and avoid conduct that gives the appearance of partiality.

 

1.     A mediator should not act with partiality or prejudice based on any participant's personal characteristics, background, values and beliefs, or performance at a mediation, or any other reason.

 

2.  A mediator should neither give nor accept a gift, favor, loan or other item of value that raises a question as to the mediator's actual or perceived impartiality.

 

3.  A mediator may accept or give de minimis gifts or incidental items or services that are provided to facilitate a mediation or respect cultural norms so long as such practices do not raise questions as to a mediator's actual or perceived impartiality.

 

C.  If at any time a mediator is unable to conduct a mediation in an impartial manner, the mediator shall withdraw.

 

One concept that was included in the comments to the original version of Standard II has not been retained--when mediators are appointed by a court or other organization, the appointing agency was to make reasonable efforts to “ensure that mediators serve impartially.”  The Joint Committee believed that was a laudable goal but chose not to retain the concept concluding that the Standards were intended to apply to the conduct of mediators and those responsibilities and obligations of mediation programs should be addressed elsewhere.

 

STANDARD III: CONFLICTS OF INTEREST

 

              The original Standard III provided as follows:

 

              A conflict of interest is a dealing or relationship that might create an impression of possible bias.  The basic approach to questions of conflict of interest is consistent with the concept of self determination.  The mediator has a responsibility to disclose all actual and potential conflicts that are reasonably known to the mediator and could reasonably be seen as raising a question about impartiality.  If all parties agree after being informed of conflicts, the mediator may proceed with the mediation.  If, however, the conflict of interest casts serious doubt on the integrity of the process, the mediator shall decline to proceed.

 

Standard III now provides:

             

 A. A mediator shall avoid a conflict of interest or the appearance of a conflict of interest during and after a mediation.  A conflict of interest can arise from involvement by a mediator with the subject matter of the dispute or from any relationship between a mediator and any mediation participant, whether past or present, personal or professional, that reasonably raises a question of a mediator's impartiality.

 

B.  A mediator shall make a reasonable inquiry to determine whether there are any facts that a reasonable individual would consider likely to create a potential or actual conflict of interest for a mediator. A mediator's actions necessary to accomplish a reasonable inquiry into potential conflicts of interest may vary based on practice context.

 

C.   A mediator shall disclose, as soon as practicable, all actual and potential conflicts of interests that are reasonably known to the mediator and could reasonably be seen as raising a question about the mediator's impartiality. After disclosure, if all parties agree, the mediator may proceed with the mediation.

 

D.  If a mediator learns any fact after accepting a mediation that raises a question with respect to that mediator's service creating a potential or actual conflict of interest, the mediator shall disclose it as quickly as practicable. After disclosure, if all parties agree, the mediator may proceed with the mediation.

 

E.  If a mediator's conflict of interest might reasonably be viewed as undermining the integrity of the mediation, a mediator shall withdraw from or decline to proceed with the mediation regardless of the expressed desire or agreement of the parties to the contrary.

 

  • Subsequent to a mediation, a mediator shall not establish another relationship with any of the participants in any matter that would raise questions about the integrity of the mediation. When a mediator develops personal or professional relationships with parties, other individuals or organizations following a mediation in which they were involved, the mediator should consider factors such as time elapsed following the mediation, the nature of the relationships established, and services offered when determining whether the relationships might create a perceived or actual conflict of interest.

 

The Reporter’s Notes point out that Standard III (A) expands the scope of this Standard indicating that a conflict of interest can arise from “multiple sources in multiple dimensions of time.”    There is an important relationship between this Standard and Standard II.  Even if parties choose to waive a conflict, and permit the mediator to proceed, the mediator must withdraw regardless if the mediator believes she cannot be impartial.   In 1994 the Standard was worded this way:  “If, however, the conflict of interest casts serious doubt on the integrity of the process, the mediator shall decline to proceed.”  In 2005, the Standard reads this way: “If a mediator’s conflict of interest might reasonably be viewed as undermining the integrity of the mediation, a mediator shall withdraw from or decline to proceed with the mediation regardless of the expressed desire or agreement of the parties to the contrary.”  Standard III (E).

 

 The 1994 Standards imposed no duty on the mediator to make an inquiry with respect to potential conflicts of interest.  In 2005, however, Standard III (B) recognizes that although the precise way that a mediator might undertake a conflict check may vary, nevertheless a mediator “shall make a reasonable inquiry to determine” possible conflicts. 

 

An earlier draft of the 2005 Standards prohibited a mediator from soliciting any type of future professional relationship with parties.   Public comment viewed that prohibition as too severe.  In response, the Joint Committee adopted Standard III (F) which points out that because such future relationships pose a danger of creating a question regarding the integrity of the mediation process, mediators should consider a variety of factors before they establish such relationships.

 

STANDARD IV: COMPETENCE

 

              In 1994 Standard IV spoke of Competence this way:

 

Any person may be selected as a mediator, provided that the parties are satisfied with the mediator’s qualifications.  Training and experience in mediation, however, are often necessary for the effective mediation.  A person who offers herself or himself as available to serve as mediator gives the parties and the public the expectation that she or he has the competency to mediate effectively.  In court-connected or other forms of mandated mediation, it is essential that mediators assigned to the parties have the requisite training and experience.

 

In 2005 Standard IV provides:

 

A.  A mediator shall mediate only when the mediator has the necessary competence to satisfy the reasonable expectations of the parties.

 

1.  Any person may be selected as a mediator, provided that the parties are satisfied with the mediator's competence and qualifications. Training, experience in mediation, skills, cultural understandings and other qualities are often necessary for mediator competence. A person who offers to serve as a mediator creates the expectation that the person is competent to mediate effectively.

 

2.  A mediator should attend educational programs and related activities to maintain and enhance the mediator's knowledge and skills related to mediation.

 

3.  A mediator should have available for the parties' information relevant to the mediator's training, education, experience and approach to conducting a mediation.

 

B.     If a mediator, during the course of a mediation determines that the mediator cannot conduct the mediation competently, the mediator shall discuss that determination with the parties as soon as is practicable and take appropriate steps to address the situation, including, but not limited to, withdrawing or requesting appropriate assistance.

 

 

The Reporter’s Notes state that the 2005 Standards retain the concept in the 1994 Standards that there should not be “artificial or arbitrary barriers to serving as a mediator.”  The 2005 Standards changed the 1994 Standards which used the idea of “qualifications,” to one which speaks of “competence.”   The 2005 Standards recognize that training and experience, as well as cultural understanding, are necessary to establish competency.  In this respect, revised Standard IV is similar to the 1994 version of Standard IV which stated that “[t]raining and experience in mediation, however, are often necessary for effective mediation.”  Thus, the omission regarding “education” in the 1994 Standards has not been changed. 

 

Section III (B) adds an additional duty for a mediator which is to recognize that, if during the course of a mediation, the mediator determines that she cannot mediate competently, it is the duty of the mediator to bring that to the attention of the parties and take appropriate steps to address the situation.

 

There was significant public comment requesting that this Standard make reference to higher standards of competency that may be imposed by regulatory bodies.  Rather than including that concept in this Standard, the Joint Committee responded to those comments by pointing out that in the Notes on Construction and the Preamble, it is clear that the 2005 Standards are subject to applicable laws and court rules.

 

STANDARD V:  CONFIDENTIALITY

 

              In 1994 Standard V described confidentiality this way:

 

              The reasonable expectations of the parties with regard to confidentiality shall be met by the mediator.  The parties’ expectations of confidentiality depend on the circumstances of the mediation and any agreements they may make.  The mediator shall not disclose any matter that the party expects to be confidential unless given permission by all parties or unless required by law or other public policy.

 

In 2005 Standard V states:

 

A.  A mediator shall maintain the confidentiality of all information obtained by the mediator in mediation, unless otherwise agreed to by the parties or required by applicable law.

 

1.  If the parties to a mediation agree that the mediator may disclose information obtained during the mediation, the mediator may do so.

 

2.  A mediator should not communicate to any non-participant information about how the parties acted in the mediation. A mediator may report, if required, whether parties appeared at a scheduled mediation and whether or not the parties reached a resolution.

 

3.  If a mediator participates in teaching, research or evaluation of mediation, the mediator should protect the anonymity of the parties and abide by their reasonable expectations regarding confidentiality.

 

B.  A mediator who meets with any persons in private session during a mediation shall not convey directly or indirectly to any other person, any information that was obtained during that private session without the consent of the disclosing person.

 

C.  A mediator shall promote understanding among the parties of the extent to which the parties will maintain confidentiality of information they obtain in a mediation.

 

D.  Depending on the circumstance of a mediation, the parties may have varying expectations regarding confidentiality that a mediator should address. The parties may make their own rules with respect to confidentiality, or the accepted practice of an individual mediator or institution may dictate a particular set of expectations.

 

According to the Reporter’s Notes, the Standard on Confidentiality has two primary objectives.  First, it imposes a duty on the mediator not to disclose to others information shared in the mediation.  And, even if the parties agree to disclose information, the Standard retains for the mediator the discretion not to do so.   Second, the Standard imposes a duty on the mediator to promote participant understanding of the extent to which information shared and comments made for the purposes of mediation are confidential.

 

STANDARD VI:  QUALITY OF THE PROCESS

 

              In 1994, this Standard read as follows:

 

              A mediator shall work to ensure a quality process and to encourage mutual respect among the parties.  A quality process requires a commitment by the mediator to diligence and procedural fairness.  There should be adequate opportunity for each party in the mediation to participate in the discussions.  The parties decide when and under what conditions they will reach an agreement to terminate the mediation.

 

The 2005 version of Standard VI states:

 

A.  A mediator shall conduct a mediation in accordance with these Standards and in a manner that promotes diligence, timeliness, safety, presence of the appropriate participants, party participation, procedural fairness, party competency and mutual respect among all participants.

 

  • A mediator should agree to mediate only when the mediator is prepared to commit the attention essential to an effective mediation.

 

  • A mediator should only accept cases when the mediator can satisfy the reasonable expectations of the parties concerning the timing of a mediation.

 

  • The presence or absence of persons at a mediation depends on the agreement of the parties and the mediator. The parties and mediator may agree that others may be excluded from particular sessions or from all sessions.

 

  • A mediator should promote honesty and candor between and among all participants, and a mediator shall not knowingly misrepresent any material fact or circumstance in the course of a mediation.

 

  • The role of a mediator differs substantially from other professional roles. Mixing the role of a mediator and the role of another profession is problematic and thus, a mediator should distinguish between the roles. A mediator may provide information that the mediator is qualified by training or experience to provide, only if the mediator can do so consistent with these Standards.

 

  • A mediator shall not conduct a dispute resolution procedure other than mediation but label it mediation in an effort to gain the protection of rules, statutes, or other governing authorities pertaining to mediation.

 

  • A mediator may recommend, when appropriate, that parties consider resolving their dispute through arbitration, counseling, neutral evaluation or other processes.

 

  • A mediator shall not undertake an additional dispute resolution role in the same matter without the consent of the parties. Before providing such service, a mediator shall inform the parties of the implications of the change in process and obtain their consent to the change. A mediator who undertakes such role assumes different duties and responsibilities that may be governed by other standards.

 

  • If a mediation is being used to further criminal conduct, a mediator should take appropriate steps including, if necessary, postponing, withdrawing from or terminating the mediation.

 

  • If a party appears to have difficulty comprehending the process, issues, or settlement options, or difficulty participating in a mediation, the mediator should explore the circumstances and potential accommodations, modifications or adjustments that would make possible the party's capacity to comprehend, participate and exercise self-determination.

 

B.  If a mediator is made aware of domestic abuse or violence among the parties, the mediator shall take appropriate steps including, if necessary, postponing, withdrawing from or terminating the mediation.

 

C.  If a mediator believes that participant conduct, including that of the mediator,

jeopardizes conducting a mediation consistent with these Standards, a mediator shall take appropriate steps including, if necessary, postponing, withdrawing from or terminating the mediation.

 

There are a number changes that were made to this Standard.

 

              There was a comment to the 1994 version of Standard VI which provided that a mediator should conduct a mediation in a way that prevents a party from “manipulating” the mediation to achieve goals that may be inconsistent with mediation principles and values.  This language has been omitted from the 2005 version of Standard VI because, according to the Reporter’s Notes, the Standards are intended to focus on mediator conduct, rather than on the conduct of the participants in the mediation. 

 

              Standard VI(A)(4) states that a mediator should not knowingly make a false statement of material fact.  This provision was debated at the Council of the Section of Dispute Resolution, with some members of the Council arguing that a mediator should not make any false statements regardless of the materiality of the statements.   In arguing for the language retained in the Standard, one mediator pointed out that it is not uncommon in mediation for the mediator to present to one side a settlement proposal as the mediator’s,  even though it originated with the other party, to avoid the phenomenon of reactive devaluation.  This type of false statement is generally regarded as permissible in mediation.  At the end of the discussion, the Council recognized that some flexibility was needed and the concept of materiality was retained.

 

              Standard VI (A)(9) addresses the mediator’s obligations when confronting criminal conduct.  The Standard directs the mediator to postpone, withdraw from or terminate the mediation.  The Joint Committee rejected language which proposed that the mediator affirmatively report such conduct to authorities.  The Joint Committee was concerned that by reporting such conduct the mediator might run afoul of the parties’ confidentiality expectations and thus expose the mediator to liability.  Of course, Standard V(A) recognizes that there may be circumstances where the law requires the mediator to report the existence of criminal behavior regardless of the confidentiality expectations of the parties.

 

              Standard VI (A)(10) adds new language that addresses the situation where a mediator is involved in a case with persons who appear to the mediator to be having difficulties participating in the mediation in an informed way.  There were many comments on this issue.  The Joint Committee concluded that under such circumstances the mediator should be expected, at a minimum, to take steps to “explore the circumstances and potential” for accommodations that will enable the disabled person to participate fully in the mediation.  Under this Standard a mediator’s obligations extend not only to persons who might be disabled under such laws as the Americans with Disabilities Act, but also to anyone having difficulty participating in the mediation.

 

              Standard VI (B) also is a change from the 1994 Standards.  The Standard has been changed to place an affirmative duty on the mediator in circumstances of domestic violence or abuse, to postpone the mediation or to terminate it.

 

STANDARD VII:  ADVERTISING AND SOLICITATION

 

              In 1994, the Standard on Advertising and Solicitation provided as follows:

 

Advertising or any other communication with the public concerning services offered or regarding the education, training, and expertise of the mediator shall be truthful.  Mediators shall refrain from promises or guarantees of results.

 

The 2005 version of Standard VII states:

 

A.    A mediator shall be truthful and not misleading when advertising, soliciting or otherwise communicating the mediator's qualifications, experience, services and fees.

 

1. A mediator should not include any promises as to outcome in communications, including business cards, stationery, or computer-based communications.

 

2.  A mediator should only claim to meet the mediator qualifications of a governmental entity or private organization if that entity or organization has a recognized procedure for qualifying mediators and it grants such status to the mediator.

 

B.  A mediator shall not solicit in a manner that gives an appearance of partiality for or against a party or otherwise undermines the integrity of the process.

 

  • A mediator shall not communicate to others, in promotional materials or through other forms of communication, the names of persons served without their permission.

 

There are no material changes between the 1994 version of Standard VII and the 2005 Standard.

 

STANDARD VIII: FEES AND OTHER CHARGES

 

              In 1994, this Standard, which only made reference only to “Fees” and not “Charges,” provided as follows:

 

              The parties should be provided sufficient information about fees at the outset of the mediation to determine if they wish to retain the services of the mediator.  If a mediator charges fees, the fees shall be reasonable, considering, among other things, the mediation service, the type and complexity of the matter, the expertise of the mediator, the time required, and rates customary in the community.  The better practice in reaching an understanding is to set down the arrangement in a written agreement.

 

              The 2005 version of Standard VIII states:

 

A.  A mediator shall provide each party or each party's representative true and complete information about mediation fees, expenses and any other actual or potential charges that may be incurred in connection with a mediation.

 

1.  If a mediator charges fees, the mediator should develop them in light of all relevant factors, including the type and complexity of the matter, the qualifications of the mediator, the time required and the rates customary for such mediation services.

 

2.     A mediator's fee arrangement should be in writing unless the parties request otherwise.

 

B.  A mediator shall not charge fees in a manner that impairs a mediator’s  impartiality.

 

1.  A mediator should not enter into a fee agreement which is contingent upon the result of the mediation or amount of the settlement.

 

2.  While a mediator may accept unequal fee payments from the parties, a, mediator should not allow such a fee arrangement to adversely impact the mediator's ability to conduct a mediation in an impartial manner.

 

There was substantial debate among some sections of the ABA regarding Standard VIII (B)(1).  This prohibition is found in the 1994 Standards, but in an earlier draft of the 2005 Standards it had been removed.  Although it had been reported anecdotally to the Joint Committee that a fee based on the result of the mediation is not uncommon, members of several ABA sections believed very strongly that is improper for a mediator to have a financial interest in the outcome of the mediation.  Ultimately, that view prevailed and the original language of Standard VIII (B) (1) was reinserted.  Recognizing that it is not uncommon for different parties in a mediation to party unequal portions of the mediator’s fee (e.g., employment disputes), Standard VIII (B) (2) admonishes a mediator to be sensitive to this situation so that it does not affect the mediator’s impartiality.

 

STANDARD IX:  ADVANCEMENT OF MEDIATION PRACTICE

 

              In 1994, this Standard simply read: “Obligations to the Mediation Process:  Mediators Have a Duty to Improve the Practice of Mediation.”  The title of this Standard was changed to “Advancement of Mediation Practice” and the Standard was expanded to provide:          

 

A.  A mediator should act in a manner that advances the practice of mediation. A mediator promotes this Standard by engaging in some or all of the following:

 

1.  Fostering diversity within the field of mediation.

 

2.     Striving to make mediation accessible to those who elect to use it, including providing services at a reduced rate or on a pro bono basis as appropriate.

 

3. Participating in research when given the opportunity, including obtaining participant feedback when appropriate.

 

4.  Participating in outreach and education efforts to assist the public in developing an improved understanding of, and appreciation for, mediation.

 

5.  Assisting newer mediators through training, mentoring and networking.

 

B.  A mediator should demonstrate respect for differing points of view within the field, seek to learn from other mediators and work together with other mediators to improve the profession and better serve people in conflict.

 

The emphasis of this standard has changed from one presumably imposing an “obligation” on mediators to promote the practice of mediation, to one providing that mediators “should” advance the practice of mediation. 

 

Conclusion

 

              The 1994 Standards represented a thoughtful and comprehensive effort by three national ADR organizations to identify the bedrock principles underlying a mediator’s obligations to the process of mediation, and to the parties who are to be served by that process.  Despite the rapid growth and expansion of mediation, it is a testament to the original drafters, that their insights and articulation of these principles have remained essentially undisturbed.  Those who revisited these Standards in 2005 are to be commended for recognizing the efforts of the original drafting committee but also for taking that work and improving upon it in subtle but important ways.

             

Bruce Meyerson is a mediator and arbitrator in Phoenix, Arizona.  He is a former chair of the American Bar Association Section of Dispute Resolution.  As chair, he initiated the process of re-examining the Model Standards of Conduct for Mediators that led to the changes made in 2005.

Committee members included Susan Yates, Wayne Thorpe, Sharon Press, Terry Wheeler, Eric Tuchmann and John Wilkinson. The reporter was Joseph B. Stulberg.

http://moritzlaw.osu.edu/dr/msoc/.  In addition to the Reporter’s Notes, this site has complete copies of the 1994 Standards and the 2005 Standards.