Ethical Standards in Mediation

By | August 18, 2019
ethical standards in mediation

This article discusses the ethical standards in mediation. Mediation is a client-driven process. Here the parties appoint a neutral third party to mediate in a dispute that has arisen between the parties. Mediation is one of the processes of Alternative Dispute Resolution.

A case can be referred to mediation in the pre-litigation stage or even during litigation if the judge thinks it fit for the case to be referred to a mediator.

Mediation is a completely private endeavor where the parties and their facts are kept confidential. The process of mediation is not based on any code or law. However, there are certain common principals which are followed by the mediators at the time of the mediation session. Several organizations have draft ground rules for the mediators to follow.

THE FOLLOWING ARE THE COMMON ETHICAL PRINCIPLES FOLLOWED IN THE MEDIATION PROCESS:

Impartiality

The mediators should be in the position of a neutral third party ensuring that no biasness of any kind is conducted from the part of the mediator. At any time of the proceeding of the mediator cannot let any party feel that she is in favor of a particular part. The mediator should be professional enough to not attach any feeling towards anyone which could relegate impartial behavior towards the mediator.

Furthermore, a mediator is not supposed to express any matter of concern or express what she personally feels for that particular case. The mediator should sit in a mediation proceeding in a manner that she has no knowledge of the case and her only objective would be to facilitate the proceeding and to ensure that the parties come to a common ground.

No mediator is allowed to have personal gains arising out of the mediation agreement. This would relegate the cancellation of the process of mediation and declare its nullity. The mediator should not show any favoritism towards the language, colour, caste, background, ideologies of any party. Furthermore, it is unwise for a mediator to accept any gifts.

Integrity

Since mediation is a client-driven process the mediators do not have any authority to make a decision, the mediator should ensure that the parties are aware of the function of the mediator in the process of mediation. The mediator is meant to facilitate engagement between the parties and to help them reach decisions for courses of action.

Confidentiality

The parties in a dispute are generally at daggers drawn and any breach of their confidentiality would mean that would further embitter the relations of the parties. The mediators are ethically bound to maintain confidentiality and ensure that the parties feel that their secret information would be protected. At the beginning of the process, the mediator should inform the parties about their rights to maintain confidentiality.

In case the parties are not in a situation to reveal their original details in front of the other party the mediator can call for a caucus where the other party would be prevented from hearing anything that would reveal the confidential information of the party.

The mediator should ensure that there no relevant information is leaked to the third party. When a third party is brought into the mediation process for assisting purposes the mediator should ensure that the third party is bound not to reveal anything that would infringe the confidentiality of the parties. In a private session, the mediator should ensure that the information of the other party is not being leaked to the party.

Honesty

Honesty is one of the most important factors leading to the success of the process. At the beginning of the mediation process, the mediators tell the parties about the process of mediation and come clean with everything. It is the responsibility of the mediator to ensure that the parties feel comfortable in each other’s presence and are ready to share their confidential information.

The mediators should constantly ask the parties whether to speak and hence to reduce the tension that prevails between the parties in a dispute. the mediator should ensure that the parties have proper knowledge of the legal principals which are is essential to make an informed choice.

SELF-DETERMINATION

 The principle of self-determination is an essential factor to be followed during the mediation process.  Self-determination is the process in which the parties come to an agreement voluntarily, without any influence and came to an informed conclusion.  A self-determination is a tool used by the parties when they want to ensure that they are not being influenced and to have a firm stand.

The parties in a mediation are given the benefit of choosing to apply the principle of determination at any time or any part of the mediation. The mediator’s role in the process would then be to ensure that both the principal is not hampering the usual process of setting up.

The mediator should not undermine or personally go forward to determine the stance of self-determination in the process. The mediator can also go on to ask for professional guidance to the parties to help them make choices that are free from prejudice.

Personal interest

The mediator should ensure that she does not have a person underlying interest in the matter at hand.  A conflict of interest arises when the mediator is found to have any personal interest included in the subject matter of the mediation or when the mediator is found to have any related relationship with that of the parties.

Neither the issue, not the parties are not supposed to have any connection with that of the mediator. The mediator should investigate carefully and disclose the information obtained to ensure to the parties that she is a clean slate. If the parties are not convinced about the mediators involvement the mediator is supposed to leave the mediation.

After the completion of the mediation, the parties and the mediator are strongly discouraged to maintain any relationship that could harm the integrity of the agreement.

ELIGIBLE MEDIATOR:

A mediator shall mediate only when he has the competence that the parties think fit. Any person who is the choice of the parties can be chosen as a mediator.

The mediator should possess the required qualification, background, competence, experience to consider him as a choice for a mediator. A person who voluntarily wishes to become a mediator is assumed to have all the qualities necessary.

  To keep up with the dynamics of the process of mediation a mediator is required to be abreast of the techniques, tricks, and ways to facilitate the process of mediation. The mediator should be aware of all the important aspects of the process of mediation like self-determination, confidentiality, and impartiality. According to the ethical standards, a mediator under the effect of narcotics or drugs cannot undertake a mediation session.

The termination of the mediation process

 The mediator can call off the process of mediation and thus lead to its termination if he analyses that there is no scope of settlement or that the process is not being respected by any of the parties. In the case of termination, the mediator is obliged to inform the parties about the termination of the process and the suitable reason regarding it.

  FEE STRUCTURE

The mediator should be open about his remuneration. The preferred time is that of before the mediation. The mediator is strictly not allowed to accept any remuneration which is contingent on the happening of the argument.

PUBLICITY

The mediator should not indulge in any advertisement techniques with the parties in the mediation process. The mediator should not mention his qualifications, experience, learning, etc to influence the parties to consider him popular.


  1. Meaning and Scope of Mediation(Opens in a new browser tab)

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