Mediation Worxx – Model Standards and Conflicts of Interest in Mediation

Posted by: David Fitzsimons Category: Ethics, Mediation, Mediation 101 Comments: 0

We continue my self-styled cruise through the Summer months by addressing a widely recognized standard, the Model Standards of Conduct for Mediators  [September 2005] and the practice and preparation guides that are conveyed in reviewing and contemplating the standards.

STANDARD III. CONFLICTS OF INTEREST [Erroneously billed last month as “Confidentiality” I blame ‘text completion’]

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. A mediator shall disclose, as soon as practicable, all actual and potential conflicts of interest that are 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.

D. 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.

E. 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.

F. 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.

Here we have clearly subjective standards as I have highlighted above, and you might well wonder why such seemingly loose criteria apply. I suggest that this comes back to a key element of mediation…”the use of a neutral to help parties by facilitating discussion leading to negotiated settlement”. I submit that such an amenable conflicts standard relies upon the supposition that the mediator is NOT there to “decide” the case, but to facilitate negotiation. One of the symptoms of the current limited use and understanding of mediation in our geographic area, in my humble opinion, is the mistaken assumption that mediators can only, and are expected to voice opinions on the merits of each party’s side. More on this next soon.

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