Diane Levin on Mediator Ethics

Diane Levin of the Award-Winning Online Guide to Mediation and the World Directory of ADR Blogs and principal of Partnering Solutions responds to our request for comment on the Rules of Ethics governing the work of mediators as follows:

The JAMS standards that you link to are similar but not identical to the standards of conduct promulgated by numerous other organizations and professional associations for mediators. As a practitioner in Massachusetts, I adhere to a combination of several standards that apply to my work.

Sources of Ethical Standards for Mediators

First, there are the Model Standards of Conduct for Mediators approved and adopted by the American Arbitration Association, the American Bar Association, and the Association for Conflict Resolution in 2005.

In brief, they include self-determination by parties; impartiality of the neutral; avoidance of conflicts of interest; competence of the neutral; confidentiality; responsibility for the quality of the process; truthfulness in advertising and solicitation; accuracy of information regarding fees and other charges; and, the advancement of mediation practice.

Responsibility to Improve the Profession

That last duty I’d like to underscore, since it’s one that I increasingly see mediators ignore or, worse, spurn. It calls upon mediators to advance the practice of mediation by, among other things, fostering diversity, mentoring new mediators, and — here’s the important one:

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.

(Emphasis mine.)

To me that means not only respecting the various models of mediation practice that abound, but to resist the temptation to label some mediators as superior or inferior to other mediators on the basis of practice area or profession of origin. We’ve got to stop putting each other down, folks.

Uniform Rules of Dispute Resolution

I also mediate within the Massachusetts courts which require neutrals to observe the Uniform Rules on Dispute Resolution.  Rule 9 of the Uniform Rules spells out a mediator’s ethical duties which include impartiality; freedom from conflicts of interest; informed consent; disclosure of fees; confidentiality; truthfulness in advertising and solicitation; responsibility to non-participating third parties (children in a divorce case, for example, or the public and public safety in a dispute involving a public construction project); and, requirements for withdrawal.

Some points to note about these rules.

Rule 9(c), Informed Consent, prohibits mediators from providing legal advice and coercing the parties to settle.

I think this is critical, since the prohibition on providing legal advice underscores that the mediator’s role is to facilitate negotiation and decision-making, not to serve as advocate. I also agree with its prohibition on coercion, which strips the parties of the power and the right to make their own decisions free from pressure by the mediator or the agenda of the court — both of which may have an interest in obtaining the settlement of as many cases as possible.

This places the needs of the parties front and center, not as mere afterthought.

In addition, I’m a member of the Massachusetts Council for Family Mediation, which has its own rules of conduct for its members, which resemble but are not identical to the rules discussed above.

These rules require mediators to clarify for parties the difference between mediation and other processes such as litigation, arbitration, negotiation through lawyers, and therapy; and that they encourage parties to seek professional advice such as legal, financial, therapeutic, or marriage counseling.

A substantial number of my family mediation clients are not represented by counsel. Because it’s easy for unrepresented parties to be confused about the mediator’s role, I take great care to emphasize that my role is to mediate — and that I will not be their lawyer, will not and cannot represent them, and will not provide legal advice — and take care to explain the difference between a mediator and a lawyer. I would do this even if the Massachusetts Rules of Professional Conduct, Rule 2.4, “Lawyer Serving as Third Party Neutral”, didn’t require me to do it.

All of these various bodies of ethical rules and duties guide my conduct at the mediation table, Vickie.

But there’s another ethical duty that I honor.

I don’t think you’ll find it formally recorded in our professional canon, but it’s this: connect with other mediators.

I am fortunate to have a network of trusted friends and colleagues (and of course bloggers) in the mediation profession to whom I turn when an ethical dilemma confronts me. We need each other.

It’s one reason why ABA Section on Dispute Resolution’s Model Standards of Conduct Standard IX, Advancement of Mediation Practice, resonates so strongly with me. Not only do we benefit as individuals, but we benefit collectively when we work together to improve our practice.

                        author

Victoria Pynchon

Attorney-mediator Victoria Pynchon is a panelist with ADR Services, Inc. Ms. Pynchon was awarded her LL.M Degree in Dispute Resolution from the Straus Institute in May of 2006, after 25 years of complex commercial litigation practice, with sub-specialties in intellectual property, securities fraud, antitrust, insurance coverage, consumer class actions and all… MORE >

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