Part Two of Two on Divorce Mediation Ethics.

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STANDARD III: CONFLICTS of INTEREST

 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.

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.

A mediator shall disclose, as soon as practicable, actual and potential conflicts of interest that reasonably known to the mediator and could reasonably be seen as raising a question about the mediator’s impartiality. After disclosure, if all parties agree, the mediator may proceed with the mediation.

If a mediator learns any fact after accepting a mediation that raises a question with respect to that mediator’s service creating a potential or actual conflict of interest, the mediator shall disclose it as quickly as practicable. After disclosure, if all parties agree, the mediator may proceed with the mediation.

If a mediator’s conflict of interest reasonably 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.

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 mediator shall mediate only when the mediator has the necessary competence to satisfy the reasonable expectations of the parties. 

Any person selected as a mediator, if 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.

A mediator should attend educational programs and related activities to maintain and enhance the mediator’s knowledge and skills related to mediation.

A mediator should have available for the parties’ information relevant to the mediator’s training, education, experience and approach to conducting a mediation. 

If a mediator, during the course of a mediation determines that the mediator cannot conduct the mediation competently, the mediator shall discuss that determination with the parties as soon as is practicable and take appropriate steps to address the situation, including, but not limited to, withdrawing or requesting appropriate assistance.

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

 STANDARD V: CONFIDENTIALITY

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

If the parties to a mediation agree that the mediator may disclose information obtained during the mediation, the mediator may do so.

 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.

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. 

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 obtained during that private session without the consent of the disclosing person.

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.

Depending on the circumstance of a mediation, the parties may have varying expectations regarding confidentiality that a mediator should address. The parties 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 mediator shall conduct a mediation in accordance with these Standards and in a manner, promotes diligence, timeliness, safety and presence of the appropriate participants, party participation, procedural fairness, party competency and mutual respect among all participants.

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

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

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 exclude from particular sessions or from all sessions.

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.

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 should 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.

A mediator shall not conduct a dispute resolution procedure other than mediation but label it mediation in an effort to gain the protection of rules, statutes, or other governing authorities pertaining to mediation.

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

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 govern by other standards.

If a mediation used to further criminal conduct, a mediator should take appropriate steps including, if necessary, postponing and withdrawing from or terminating the mediation.

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. 

If a mediator made aware of domestic abuse or violence among the parties, the mediator shall take appropriate steps including, if necessary, postponing, withdrawing from or terminating the mediation.

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 and withdrawing from or terminating the mediation.

STANDARD VII: ADVERTISING and SOLICITATION

 A mediator shall be truthful and crystal clear when advertising, soliciting or otherwise communicating the mediator’s qualifications, experience, services and fees. 

A mediator should not include any promises as to outcome in communications, including business cards, stationery, or computer-based communications.

A mediator should only claim to meet the mediator qualifications of a governmental entity or private organization if that entity or organization has a recognized procedure for qualifying mediators and it grants such status to the mediator.

A mediator shall not solicit in a manner that gives an appearance of partiality for or against a party or otherwise undermines the integrity of the process.

A mediator shall not communicate to others, in promotional materials or through other forms of communication, the names of persons served without their permission.

STANDARD VIII: FEES and OTHER CHARGES

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 can incur in connection with a mediation. 

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.

A mediator’s fee arrangement should be in writing unless the parties request otherwise.

A mediator shall not charge fees in a manner that impairs a mediator’s impartiality. 

A mediator should not enter into a fee agreement that is contingent upon the result of the mediation or amount of the settlement. 

While a mediator may accept unequal fee payments from the parties, a mediator should not allow such a fee arrangement adversely influence the mediator’s ability to conduct a mediation in an impartial manner.

STANDARD IX: ADVANCEMENT of MEDIATION PRACTICE

 A mediator should act in a manner that advances the practice of mediation. A mediator promotes this Standard by engaging in some or all of the following: 

Fostering diversity within the field of mediation. 

Striving to make mediation accessible to those who elect to use it, including providing services at a reduced rate or on a pro bono basis as appropriate. 

Participating in research when given the opportunity, including obtaining participant feedback when appropriate.

Participating in outreach and education efforts to assist the public in developing an improved understanding of, and appreciation for, mediation. 
Assisting newer mediators through training, mentoring and networking.

A mediator should demonstrate respect for differing points of view within the field, seek to learn from other mediators and work together with other mediators to improve the profession and better serve people in conflict.

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