Standards for Mediators: Impartiality

Posted by: David Fitzsimons Category: Mediation Comments: 0

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.

This one is pretty clear, I submit, on its face.  In my experience, pretty much all of the mediators I have worked with, or retained when I represent a litigant, have come to be mediators out of a desire to assist in the resolution of conflicts, and as such recognize the benefit, and indeed requirement of impartiality as defined.

B. A mediator shall conduct a mediation in an impartial manner and avoid conduct that gives the appearance of partiality.

Here those oh so difficult to define words “…avoid…the appearance of partiality…” arise.  It occurred to me early in my experience with mediation that looking for actual, or the appearance of bias in the mediator takes up a considerable amount of time of the parties and their counsel, particularly if the mediator spends any degree of time in caucus with the other side. In my experience, it is more often the perception, right or wrong, that the mediator “took sides” that either scuttles a mediation, or of the dispute/case does settle, results in an imperfect outcome…”The case settled, but the mediation was a failure”. This is getting too heavy for “Summer Cruising”, and will appear in a specific article later this fall.

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.

I have combined these three sub-sections, because for the legal user, they are best addressed by noting that the Model Standards of Conduct for Mediators apply also to mediation processes outside the court or litigation context. If any of these standards appear foreign to you, write in with your questions, your identity will not be disclosed in my response.

C.      If at any time a mediator is unable to conduct a mediation in an impartial manner, the mediator shall withdraw.

Again, these Standards also address conflict resolution outside the court process, but it can also happen that a mediator has forced parties or just one to address hard truths, and continuation might prejudice progress made.

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