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Mediators Code of Conduct

CODE OF CONDUCT FOR MEDIATORS

A. OBJECTIVES OF CODE OF CONDUCT FOR MEDIATORS

The main objectives of this Code of Conduct for mediators are as follows:

(a) to provide guiding principles for mediators’ conduct;

(b) to provide a means of protection for the public; and

(c) to promote understanding of and confidence in mediation as a process for

resolving disputes.

 

B. DEFINITIONS

In this Code of Conduct:

(1) Mediation is a consensual process in which an impartial third party, with no power

to impose a resolution, works with the disputing parties to help them explore and if

possible reach, a voluntary and mutually acceptable resolution of some or all of the

issues in dispute; and

(2) The mediator’s role is to facilitate negotiations by encouraging and assisting

parties:

(a) to actively participate in the mediation process;

(b) to clarify and define the issues to be mediated;

(c) to determine whether and how to resolve their dispute;

(d) to communicate and negotiate fairly and in good faith with each other;

(e) to convey their interests to one another and explore/assess possible settlement

options;

(f) to consider their risks and the strengths and weaknesses of their case; and

(g) to reach agreement if possible, based on informed consent.

 

C. MEDIATOR RESPONSIBILITIES

(1) Mediators shall maintain professional competency in mediation skills and, where

s/he lacks the skills necessary for a particular case, shall decline to serve or

withdraw from serving as a mediator; and

(2) Mediators providing mediation services that are court-connected shall act in

compliance with this Code of Conduct and any undertakings, Rules, Practice

Directions, Regulations, practices and procedures relevant to the mediation

process.

 

D. IMPARTIALITY

Mediators shall in word and action, maintain impartiality towards the parties and

the issues in dispute. Where his/her impartiality is in question, s/he shall decline

to serve or withdraw from serving as a mediator.

 

E. CONFLICTS OF INTEREST

Mediators shall as far as possible, avoid conflicts of interest and shall in any event

resolve all such conflicts in favour of his/her primary obligation to impartially

serve the parties to the dispute.

 

F. CONFIDENTIALITY

(1) Mediators shall subject to statutory obligations to the contrary, maintain the

confidentiality of all communications made to him/her by the parties within the

mediation process. The exceptions are only:

(a) when the information/documentation discloses an actual or potential threat to

human life;

(b) any report or summary that is required to be prepared by mediators; or

(c) when the information/documentation is non-identifiable (unless all of the

parties otherwise authorize identification), and is used for research, statistical,

accreditation, or educational purposes and is limited only to what is required to

achieve these purposes; and

(2) Mediators shall inform the parties of the confidential nature of mediation,

including any limits to confidentiality applicable to information disclosed during

private sessions (caucuses).

 

G. PROMOTE UNDERSTANDING

Mediators shall make reasonable efforts to ensure that each party:

(a) understands the operation of the mediation process;

(b) understands the role of the mediator, the parties and others who attend

mediation;

(c) has the opportunity to consider and convey possible options for settlement; and

(d) understands s/he is free to make whatever choices s/he desires regarding

participation in mediation generally and with respect to specific options.

 

H. SELF-DETERMINATION

(1) Mediators shall respect and encourage self-determination by the parties in their

decision about whether to resolve their dispute and on what terms; and

(2) Mediators have the responsibility to advise unrepresented parties to obtain

independent legal advise, where appropriate.

 

I. SEPARATION OF MEDIATION FROM LEGAL ADVICE & COUNSELING

Mediators shall limit him/herself solely to the role of mediator, and shall refrain

from giving legal advice or counselling.

 

J. TERMINATION OR SUSPENSION OF MEDIATION

(1) Mediators shall withdraw from mediation for the reason referred to in paragraph

C(1);

(2) Mediators may suspend or terminate mediation if requested by one or more of the

parties;

(3) Mediators may suspend mediation if in their opinion:

a. the process is likely to prejudice one or more of the parties;

b. one or more of the parties is using the process inappropriately;

c. the mediation process is seen or perceived by the mediator to be detrimental to

one or more of the parties or the mediator;

d. it appears that one party is not acting in good faith; or

e. there are other reasons that are or appear to be counter-productive to the

process; and

(4) Mediators shall terminate mediation if the conditions referred to in J.3.(a)-(e) above

are not rectified.

 

Extracted in part from “THE DILEMMAS OF MEDIATION PRACTICE – A STUDY OF ETHICAL

DILEMMAS AND POLICY IMPLICATIONS” by Robert A. Baruch Bush, Prof. of Law, Hofstra Law

School. For the National Institute for Dispute Resolution (NIDR) and from the Model Code of

Conduct of the Ontario Bar Association, Canada.