MCDR Behavioral and Ethical Standards for ADR Professionals

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

 1. 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.

2. 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.

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


Standards of Practice for Mediators 
Certified by The Maryland Council for Dispute Resolution


PREAMBLE

Mediation is used to resolve a broad range of conflicts within a variety of settings. These Standards are designed to serve as fundamental ethical guidelines for persons mediating in all practice contexts. They serve three primary goals: to guide the conduct of mediators; to inform the mediating parties; and to promote public confidence in mediation as a process for resolving disputes.

Mediation is a process in which an impartial third party facilitates communication and negotiation and promotes voluntary decision making by the parties to the dispute.

Mediation 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.

Note on Construction: These Standards are to be read and construed in their entirety. There is no priority significance attached to the sequence in which the Standards appear.

Various aspects of a mediation including some matters covered by these Standards, may also be affected by applicable law, court rules, regulations, other applicable professional rules, mediation rules to which the parties and mediators have agreed, and other agreements of the parties. These sources may create conflicts with, and may take precedence over, these Standards. However, a mediator should make every effort to comply with the spirit and intent of these Standards in resolving such conflicts. This effort should include honoring all remaining Standards not in conflict with these other sources.

These Standards do not have the force of law until adopted by a regulatory authority.


STANDARD I. SELF-DETERMINATION

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, un-coerced 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.

4. This section does not intend that the mediator is responsible for making an assessment of the parties’ needs and recommendations regarding professional services that should be consulted. Nor does the section place an affirmative duty on the mediator to insist that parties consult other professionals.

B.  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.

STANDARD II. IMPARTIALITY

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.


STANDARD III. CONFLICTS OF INTEREST

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.    If a mediator learns or knows of any fact or circumstance that reasonably could be seen as creating a potential or actual conflict of interest, the mediator shall, as quickly as possible: (1)decline to accept the mediation, either with or without disclosure if the mediation has not begun; or (2) withdraw from the mediation, either with or without disclosure, if the mediation has begun, or (3) disclose the conflict to the parties and if all parties and the mediator agree, proceed with the mediation.

D.   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.

E.   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.


STANDARD IV. COMPETENCE

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 he or she cannot conduct the mediation competently, the mediator shall, as soon as is practicable, do one of the following: (1) discuss that determination with the parties and take appropriate steps to address the situation, including, but not limited to, withdrawing or requesting appropriate assistance; or (2) withdraw from the mediation without disclosing the reason.

C.   If a mediator’s ability to conduct a mediation is impaired by drugs, alcohol, medication or otherwise, the mediator shall not conduct the mediation.

STANDARD V. CONFIDENTIALITY

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

1. If the parties to a mediation and the mediator all 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 and the mediator 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.


STANDARD VI. QUALITY OF THE PROCESS

A.    A mediator shall conduct a mediation in accordance with these Standards.

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

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

3. 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.

4. 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.

5. 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 shall 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.

6. A mediator shall not conduct a dispute resolution procedure other than mediation and label it mediation.

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

8. 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.

9. If a mediation is being used to further criminal conduct, a mediator should take appropriate steps, if necessary, including postponing, withdrawing from or terminating the mediation. … mediators should be mindful that “some matters covered by these Standards may also be affected by applicable Law, court rules, regulations, other applicable professional rules, mediation rules to which the parties and the mediator have agreed, and other agreements of the parties.”

10. 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, if necessary, take appropriate steps including postponing, withdrawing from or terminating the mediation. Domestic abuse or violence includes child, spousal, and elder abuse and violence. ADR professionals should be sensitive to child maltreatment issues and domestic violence abuse and violence issues, and know how to respond appropriately. See also the Maryland Judiciary’s Family Court ADR Program Best Practices.

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.


STANDARD VIII. FEES AND OTHER CHARGES

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.










                
    Maryland Council for Dispute Resolution
    10319 Westlake Drive, Suite 247
     Bethesda, Maryland   20817

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    MCDR is the oldest membership-based organization in Maryland dedicated to promoting the use of mediation and supporting

    the mediation profession.  We have a proud history of successfully advocating for allowing multiple professions to practice mediation,

    halting attempts to restrict the practice some fifteen years ago.  MCDR is the first organization to establish performance based criteria

    now in use as a national model, part of an ongoing dialogue on quality assurance and mediator credentials.


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