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FARO Observatory for quality and ethics in conflict resolution

 

Mediator´s Code of Ethical Conduct and Good Practices

 

This code is based on the experience of many expert mediators in different contexts, including standards developed in the AAA, ABA & ACR Standards of Conduct for Mediators.

 

I.- Introduction

 

A. Definitions

Mediation is a flexible process in which an impartial third party facilitates communication and negotiation, and promotes voluntary decision-making by conflicting parties. Mediation offers the parties a safe space to define and clarify their problems, understand the different perspectives, identify interests, generate and evaluate possible solutions, and reach consensual and informed agreements, if they wish.

 

B. Extensión

This code sets the fundamental guidelines for persons exercising mediation in all contexts. The code deals with the principles of mediation and the basic obligatory criteria of mediator intervention, without entering styles or models of mediation, necessarily respecting the rich diversity of mediation interventions. This code also leaves flexible and free performance in the process, and its administration, beyond those fundaments that protect the basic quality and ethics required.

 

C. Objetives

The objectives of this Mediator´s Code of Ethical Conduct and Good Practices include:

 

  1. Inform and guide the mediator.
  2. Create coherence and agreement on the appropriate action of the mediator.
  3. Report to the public.
  4. Create trust in mediation.
  5. Helping in developing mediation.
  6. Serve as a reference for measuring the performance of a mediator.

 

 

II.- Mediator Competency 

 

A. Choosing the mediator

Any person that the parties may choose can be a mediator because mediation only proceeds in the discrepancies on non-mandatory law, and in this rules the autonomy of the will of the parties.

 

B. Competency

However, the mediator must intervene only when he has the necessary competency, including knowledge, training, experience, aptitude, and attitude, which requires the specific context of mediation, satisfying the expectations of the parties. If the parties elect to hold their mediation under a specific rule or law, the mediator must satisfy the requirements set forth by that party that go beyond the minimum requirements of this code.

 

A person who offers his services as a mediator creates the expectation that he or she meets the qualities to mediate effectively. Therefore, the mediator must inform the parties of their training, experience, and relevant knowledge to the case.

 

The mediator must obtain a good basic and practical training and improve this in a continuous way in order to improve the quality of mediation and its service to clients.

 

If in the course of mediation a mediator cannot handle mediation competently, he or she must take appropriate action, including informing the parties, requesting assistance, or withdrawing from the case.

 

Comediation can be a good way to learn, and to increase the effectiveness of the mediator.

 

 

III.- Mediator´s Independence

 

A. The mediator must be free to act.

 

B. The mediator must act without pressure or manipulation for reasons of meeting quotas, obtaining agreements, fees, or reporting on cases that mediate.

 

 

IV.- Parties´ Voluntariness and Self-Determination

 

A. Cases of obligation to mediate.

Mediation is a voluntary and self-determining process. Although the parties may be forced to mediate, for example, by a clause in a contract, a protocol, at the instance of a court, statute or other rules, the parties are not obliged to negotiate in mediation or reach a agreement.

 

B. Self-determination.

Self-determination is the act of arriving at a voluntary, unconstrained, freely and informed decision at any point or subject of mediation, from the selection of the mediator, to the design of the process, to participate in it or to leave it, and the results. It includes that the parties have the necessary voice to participate in the process, and can defend their interests.

 

The mediator may have to balance the self-determination of the parties with the principles of mediation to ensure a quality process in accordance with the principles of mediation. The mediator must ensure the quality of the decisions, recommending that the parties advise each other so that their decisions are informed.

 

 

V.- Impartiality

 

A. Definition of impartiality in mediation.

The mediator will serve the parties without favoring one over another, and without acting to the detriment or interest of any of them.

 

B. Impartial action of the mediator.

Interventions by the mediator should encourage the participation of the parties in conditions of balance and self-determination.

 

The mediator must not accept a case if he can not serve in an impartial manner, and must refuse if circumstances concur during mediation that prevent him from continuing to act in an impartial manner.

 

The mediator will avoid bias, or appearance of bias, or give or receive a gift, favor, loan or any other element of value that calls into question its impartiality. It may accept or give small gifts or services that serve to facilitate mediation, or respect for cultural norms, as long as they do not call into question the mediator’s impartiality.

 

 

VI.- Mediator´s Conflicts of Interest and Neutrality

 

A. Obligation to disclose conflicts of interest.

The mediator must disclose any circumstance, before and during mediation, that may affect his impartiality, or his appearance of impartiality, or that may generate a conflict of interests, real or perceived.

 

Such circumstances include:

 

All types of relationships, whether past, current or future, personal, professional, contractual, business, economic or otherwise, with one of the parties, or with the object of the conflict.

 

That the mediator, or a member of your company or organization, has previously acted in favor of one or more under any circumstances.

 

Any direct or indirect interest in the outcome of the mediation.

 

B. Action in cases of conflict of interest, real or perceived.

In such cases, the mediator may only accept or continue mediation when he assures that he can mediate impartially, and provided the parties agree and expressly state.

 

The mediator may accept mediation when he or she has served as mediator before for one or more of the parties, expressly stating their previous relationship.

 

Independently of the will of the parties, if the conflict of interest represents a weakening in the current or future integrity of the mediation, the mediator must withdraw or refuse to continue mediation.

 

C. Obligation to maintain neutrality after mediation, and avoid conflicts of interest, real or perceived.

After mediation, the mediator will not establish any other relationship with any party in any matter that raises doubts about mediation. In the event that a mediator maintains personal or professional relationships with any of the parties, persons or organizations involved in mediation, the mediator must weigh factors such as the time elapsed after mediation, the nature of the relationships, and the services offered to determine whether they could represent a real or perceived conflict of interest.

 

 

VII.- Quality of the mediation process

 

A. Start, quality of information and consent.

The mediator will accept a mediation case only if he can devote the attention he requires, and satisfy the reasonable expectations of the parties as to their interventions.

 

The mediator will inform the parties of possible causes that may affect their impartiality, and the limits of confidentiality, not only that the mediator is impartial and that the process is confidential, so that the parties understand these concepts.

 

The mediator will inform the parties of their profession, training and experience, emphasizing that it will serve as mediator and not as a person offering a service from their professional group.

 

The mediator will explain how his role of mediator is different from the work of a professional in his professional field so that the parties understand the service they contract for their mediation, whether paid or not. The mediator can only provide the parties with information that is qualified by their training and experience to give, if giving this information is in accordance with this code and does not violate any principle of mediation.

 

The mediator will explain the principles and characteristics of mediation, cost, and their personal way of organizing and acting in the process.

 

The mediator will explain that the outcome of the mediation may be different from other means of resolution, and will report on the legal consequences of the agreement that may be reached, depending on the form the parties give to this.

 

The mediator will ask each party present in the mediation if it has the capacity to make decisions, and if they do not have it, it will make it clear for the parties to decide whether they want to continue, postpone the session, or abandon mediation.

 

The mediator will refrain from making promises or giving assurances about the possible outcomes of mediation.

 

B. Safety in the process.

The mediator shall ensure that the parties have sufficient advice for self-determination throughout the mediation, and that the parties make informed decisions.

 

If the mediation is being used for illicit purposes, or the mediator detects violence between the parties, or detects that the conduct of the parties, or his own, endangers the performance of mediation under these rules, the mediator will take the appropriate measures, including, if necessary, delaying the process, withdrawing from it, or ending mediation.

 

The mediator will ensure unprotected persons or entities not represented in mediation, such as children, the elderly, or the environment, that may be affected by the results of mediation.

 

The mediator will ensure the stability of the agreement, promoting that it is consensual, clear, and informed.

 

C. Effectiveness in mediation.

The mediator may use joint or separate sessions with the parties and/or their attorneys, depending on the context of the case, and techniques and strategies to help advance the process, including comedy, by maintaining the rules of this code.

 

The mediator may suggest participation in the process by specialists who can clarify technical issues or otherwise support dialogue between the parties.

 

The mediator may recommend, should it deem it necessary, that the parties consider resolving their disputes through arbitration, therapy, expert evaluation, or other proceedings.

 

The mediator shall ensure that the duration of the mediation process is as short as possible, taking into account the needs of the parties.

 

 

VIII.- Confidentiality

 

A. Mediator´s obligation of confidentiality.

The mediator must keep confidential all information derived from or relating to mediation, unless otherwise agreed between all parties, or in case of legal requirement.

In cases of mediations derived from a court or organization to the mediator, the mediator may inform, if necessary, whether the parties presented themselves and whether they reached an agreement.

The mediator will not share the information disclosed by a party in private session without his permission, except by legal requirement.

 

B. Mediator´s obligation against third parties present in the mediation.

The mediator must ensure that third parties present in the mediation who are not the parties or their representatives also understand the principle of confidentiality and undertake in writing to maintain it.

 

C. Specific agreements on confidentiality.

However, the mediator and the parties may agree on specific rules regarding the expectations to be made relevant to confidentiality. In this case, the mediator should facilitate that the parties talk about their expectations, and make agreements on the confidentiality of the mediation expressly in writing, some may govern the current process or context, others the agreement or post-process.

 

 

IX.- Fees and other costs in mediation

 

A. Clear and complete information on fees.

The mediator shall provide each party or its representatives with clear and complete information on mediation fees, expenses, and any other charges that may be incurred in connection with mediation.

 

The fee agreement will be in writing unless the parties request otherwise, and this is possible in the normative context of their mediation.

 

B. Conflict of Interest in Fees.

The mediator shall not receive remuneration in such a way as to prejudice his impartiality, or the appearance of his impartiality. You should not agree on your subordinate fees to the result of the mediation, or the amount of the agreement.

 

C. Acceptability of unequal payment of fees.

The mediator can accept that the parties divide the payment of the mediation unequally, or that it is paid by a party. However, the mediator can not allow such payments to adversely affect his ability to carry out mediation in an impartial manner.

 

 

X.- Personal and professional development of mediation

 

A. Personal and professional development.

The mediator should reflect on his work and consider how to improve his practice. You can ask your customers to provide information about your experience.

 

The mediator must participate in continuous training, with special attention to improving their skills and abilities. Comedy can be a way to learn from others and serve as a mentor too.

 

B. Support for the development of mediation, and accessibility to mediation.

The mediator must consider how to increase access to mediation by groups that may have barriers to access, whether physical, economic, cultural, or knowledge.

 

The mediator can help the development of mediation by engaging in outreach activities to generate knowledge and trust between the general public and professional colleagues.