MCDR BEHAVIORAL AND ETHICAL STANDARDS

BASIC STANDARDS OF PRACTICE FOR ADR PROFESSIONALS

This section refers to mediators but also to other ADR professionals, such as arbitrators, group facilitators, etc.

 ADR professionals will honestly represent their competencies to the parties before they provide any service, and will make sure that they point out to the parties any potential limitations that may affect the quality of the service to be provided.

Professionals must insure that the parties have received a full and honest representation and description of the service to be provided, and have understood that representation.

This includes information about role, method, confidentiality, disclosure, style, fees, procedural rules.  All relevant financial and professional affiliations must be disclosed.

Professionals will insure that all behavioral and administrative commitments are kept.

Professionals will insure that the parties are informed of any and all changes to the basic understandings and assumptions that were previously described to them.

STANDARDS OF PRACTICE FOR MEDIATORS
CERTIFIED BY THE MARYLAND COUNCIL FOR DISPUTE RESOLUTION

A. Impartiality

  • 1. The mediator will commit to serve all parties and to maintain a non-adversarial, impartial mode of behavior.

  • 2. The mediator cannot serve in any other  professional capacity to any party during the time that party continues with him/her in the mediation process (e.g., as a lawyer or a therapist).

  • 3. The mediator cannot serve in the future in any capacity concerning the subject matter of a mediated dispute without the consent of all parties.

  • 4. The mediator cannot serve in any other  professional capacity for any party from a mediation for at least six months after the conclusion or cessation of the mediation, unless all parties consent to such an arrangement before the six month time period has elapsed.

  • 5. During the mediation, the mediator will not allow external goals or pressures to influence the outcome (e.g. high settlement rates or other targets).

B. Confidentiality

  • 1. Mediators have an obligation to inform all parties about the rules of confidentiality and any relevant exceptions, relating to verbal exchanges, private caucuses, written communications, agreements or other documents.

  • 2. There wil be no disclosure of any information by the mediator to anyone or any organization about the conduct of the mediation, and no mediator will be required to testify, except for the situations listed below in (3).

  • 3. Possible Exceptions to the Rule of Confidentiality:
    • a. Any disclosures that are required by law, or by the regulations of the organization that is the sponsor of the mediation;
    • b. Exceptions that all parties agree to, in writing;
    • c. Any documents not specifically prepared for use in the mediation
    • d. Issues and situations may be described (e.g. for training and analysis purposes) as long as the identity of the parties is not revealed, and is not likely to be surmised.

  • 4. If a mediator is subpoenaed or otherwise ordered to testify, the mediator will inform the parties without delay, to give them an opportunity to support or oppose that order.

C. Self Determination

  • 1. The mediator will inform all parties that mediations are conducted on the principle of self-determination and that the mediator will not make judgements or rulings.

  • 2. The mediator will encourage parties to develop their own options and to explore fully their own perceptions of the available alternatives.  The mediator may suggest options but may not  recommend courses of action.

  • 3. The mediator may help define issues and questions for the parties to consider, but may not offer legal advice.

  • 4. If, at any time, a mediator chooses to provide information, then that should be within the specified guidelines and authority as defined by the sponsoring organization (e.g. courtroom procedures for a court sponsored system).  If a mediator chooses to provide information based on personal knowledge, then that should be done with the expressed permission or request of the parties.

D. General Process Standards

  • 1.  Mediators have an obligation to conduct the process fairly, and to promote a balanced dialogue and a climate of mutual respect.

  • 2. Mediators have an obligation to insure that all parties understand the ground rules for the conduct of mediation, including the rules of confidentiality.  Mediations will include a signed "memorandum of understanding" whenever suitable.

  • 3. Mediators have an obligation to insure, to the greatest degree possible, that parties make fully informed decisions and that they have the information that would have significant bearing on the outcome.  Mediators, however, should not be the source of such information, for the most part.  Instead, mediators should encourage parties to consult legal and technical experts who could assist them in understanding the choices available to them and the effects of these choices.

  • 4. Mediators have an obligation to exercise their judgement and withdraw when they perceive that any party is acting in a way that compromises the integrity of the mediation, and the mediator has not been able to modify patently dishonest behavior.  This includes the withholding or falsifying of information, using manipulative or intimidating methods, or anything that would compromise the fairness of the outcome.

  •  5. Mediators have an obligation to withdraw, or to suspend or stop a mediation if, in the mediator's judgement, any party is unable to represent their interests in a reasonably competent manner.

  •  6.  Mediators have an obligation to refuse, or withdraw, if it appears that their limited knowledge or understanding of particular subject matter will impede the efficient processing of information, or will prevent the development of completely informed decisions by any party.

  •  7. Mediators have a responsibility to continually educate themselves and to add to their knowledge in any area of specialization in which they work.

  • 8. Mediators shall advise parties of their right to swithdraw at any time, and that the mediator also has that right, without explanation.

  • 9. It is incumbent upon all mediators and mediation systems to institute some form of evaluation or feedback system to monitor and improve the quality of the service they provide.