Often used in a divorce, mediation is a voluntary, non-binding process where a neutral third party helps the spouses reach a mutually beneficial resolution of their dispute. The mediator facilitates communication, promotes understanding, assists in identifying and exploring issues, interests and possible bases for agreement and compromise. Sometimes he or she helps the parties evaluate the likely outcome in court or arbitration if they cannot reach settlement through mediation.
Ethical issues in mediation are typically associated with confidentiality and conflict of interest, according to Trip Barthel, the Founder and Executive Director of the Neighborhood Mediation Center in Reno, Nevada. Sometimes, however, the mediator faces situations that tax the give and take of the process. For example, sometimes mediation moves toward a very unbalanced proposal, or, worse, threatens the well being of parties “not at the table,” such as children in a custody dispute.
Mediation is a fluid and flexible process. JAMS (formerly Judicial Arbitration and Mediation Services), which is a national mediation service, have established guidelines to guide mediators facing an ethical conflict. National in scope, the guidelines are not intended to supplant applicable state or local laws or rules. All JAMS mediators know applicable state statutes or court rules. In the event that these guidelines are inconsistent with such statutes or rules, the mediators complies with the applicable law.
> The mediator must make sure everyone knows about his or her role and understands the terms of the settlement. If a party is unable to give informed consent because of, for example, a physical or mental impairment, the mediation should stop until such informed consent has been obtained from the party or the party’s duly authorized representative.
> The mediator must protect the voluntary participation of each party. The right of the parties to reach a voluntary agreement is central to mediation. Court-ordered mediation can imply reluctance. A mediator should assure the parties that although they have been ordered to attend the mediation, a settlement could be reached only if it is to their mutual satisfaction.
> The mediator must be competent to mediate a problem. A mediator should have sufficient knowledge of relevant procedural and substantive issues. A mediator should refuse to serve or withdraw from the mediation if the mediator becomes physically or mentally unable to meet the reasonable expectations of the parties.
> The mediator must maintain the confidentiality of the process. The parties must understand confidentiality before the mediation begins. The mediator should explain (a) any applicable laws, rules or agreements prohibiting disclosure in subsequent legal proceedings of offers and statements made and documents produced during the session, and (b) the mediator’s role in maintaining confidences within the mediation and as to third parties.
> No confidential information should be disclosed without permission of all parties or unless required by law, court rule or other legal authority. A mediator must not use confidential information acquired during the mediation to gain personal advantage or advantage for others, or to affect adversely the interests of others. If the mediation is being conducted under rules or laws that require disclosure of information, a mediator should so notify the parties prior to beginning the mediation session. In addition, a mediator’s notes, the parties’ submissions and other documents containing confidential or otherwise sensitive information should be stored in a reasonably secure location and may be destroyed 90 days after the mediation has been completed or sooner if all parties so request or consent.
> The mediator must be impartial. A mediator should disclose any information that reasonably could lead a party to question the mediator’s impartiality. A mediator may proceed with the process unless a party objects to continuing service. A mediator should withdraw if a conflict of interest exists that casts serious doubt on the integrity of the process.
> The mediator should refrain from any conduct involving a party, insurer or counsel to the mediation that reasonably would cast doubt on the integrity of the mediation process, absent disclosure to and consent by all parties to the mediation. This does not preclude the mediator from serving as a mediator or in another dispute resolution capacity with a party, insurer or counsel involved in the prior mediation.
> The mediator should exercise caution in accepting items of value, including gifts or payments for meals, from a party, insurer or counsel to a mediation during or after a mediation, particularly if the items are accepted at such a time and in such a manner as to cast doubt on the integrity of the mediation process.
> A mediator should not recommend other professionals. If a mediator is unable to make a personal recommendation without creating a potential or actual conflict of interest, the mediator should so advise the parties and refer them elsewhere.
> If it becomes appropriate to discuss the possibility combining mediation with binding arbitration, the mediator his or her role and relationship to the parties has altered, as well as the impact such a shift may have on the disclosure of information to the mediator. The parties should be given the opportunity to select another neutral to conduct the arbitration procedure.