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Manual > 5 - Getting Started > OMA Standards

Oregon Mediation Association Standards of Practice

Preamble

Self Determination

Informed Consent

Impartial Regard

Confidentiality

Competence

Encourage Good Faith Participation

Fees

Advertising and Solicitation

Dual-Role Limitations

Preamble

These Standards of Mediation Practice are intended to guide the conduct of mediators in Oregon, to educate participants about appropriate mediator behaviors, and to promote public confidence in mediation as a process for resolving disputes. Each member of the Oregon Mediation Association must agree to abide by these Standards when serving as a mediator. Every mediator is responsible for conducting mediations in a manner that promotes trust in the process and in the integrity and competence of mediators.

These Standards are based on core values applicable to all mediators, recognize mediation as a separate profession, and focus on mediator behaviors. Because OMA values diversity among mediators and mediation participants, the Standards are meant to apply to all types, styles, and contexts of mediation. The Standards do not attempt to define "best practice" or to reflect the variety of appropriate practices which continue to develop in the various contexts in which mediation is practiced. The Comments following each Standard are provided to aid in the interpretation of the Standard, and are not part of the Standard.

The following terms are used in these Standards with these definitions:

"Mediation" - Mediation means a process in which a mediator assists and facilitates two or more parties to a controversy in reaching a mutually acceptable resolution of the controversy and includes all contacts between a mediator and any party or agent of a party, until such time as a resolution is agreed to by the parties or the mediation process is terminated. [This definition is taken from the Oregon Revised Statutes Section 36.110(6).] In these Standards, "mediation" refers to the entire continuum of the mediation process, from initial contact with a participant to closure, and "parties" will be referred to as "participants."

"Participant" - A participant is an individual with a stake in the outcome who is participating in mediation.

CORE STANDARDS  

I. Self Determination

A mediator shall respect and encourage the self-determination of participants in decisions regarding what process to use and regarding whether, and on what terms, to resolve their dispute or issues.

Comments

1. Self determination is a fundamental principle of mediation. Participants must have the capacity and freedom to reach a voluntary agreement. The mediator must not decide any substantive issue for the participants.

2. To encourage self determination, the mediator should clarify the mediation process s/he proposes to use, including the particular style and structure, and should distinguish mediation from other processes such as litigation, arbitration, counseling, fact finding, etc. The mediator may offer his/her process expertise, but participants should be free to choose the particular form of mediation or other dispute resolution process.

3. Each participant should be able to fully comprehend the process, issues, and options for settlement, to make decisions, and should not be acting under fear, coercion, or duress. If the mediator believes that a participant is unable or unwilling to participate effectively in the mediation process, the mediator must suspend or terminate the mediation.

4. The mediator must avoid exerting pressure on a participant, either to participate in mediation or to reach agreement. However, the mediator may encourage participants to consider both the benefits of participation and agreement and the costs of withdrawal and impasse.

5. A participant may withdraw from mediation at any time. Even when mediation is "mandatory" the mediator must respect the participant's determination of whether to continue in the process that is offered.

II. Informed Consent

A. The mediator shall provide mediation services only when the participants have given their informed consent to participate in the specific mediation process offered by the mediator.

B. The mediator shall disclose to the participants all information about the mediator and his/her services necessary to enable the participants to make an informed decision whether to use or continue the services of the mediator and whether to participate in the specific mediation process. The mediator shall explain the mediation process and the roles of the mediator, the participants, and their representatives. The mediator shall also disclose information regarding conflicts of interest, relationships, confidentiality and fees as specified in these Standards.

C. The mediator shall make reasonable efforts throughout the mediation to assure that the participants are free and able to make choices regarding participation in mediation generally and regarding options for reaching agreement.

Comments

1. The mediator's duty to disclose is a continuing obligation throughout the process. All disclosures shall be truthful and shall not mislead by omission.

2. The mediator should make the participants aware of the importance of consulting other professionals to help them make informed decisions.

3. If one or more of the participants withdraws from a multi-participant mediation, the mediator may continue the mediation as long as the remaining participants give their informed consent.

III. Impartial Regard

The mediator shall demonstrate and maintain a commitment to impartial regard by serving all participants at all times. The mediator shall not have any personal stake in the outcome of the mediation. Where the mediator's ability to give impartial regard is in question and that question cannot be resolved s/he shall decline to serve or shall withdraw from serving as mediator.

1. Conflicts of Interest. The mediator shall disclose all circumstances that may raise a question as to the mediator's ability to give the participants impartial regard.

2. Relationships. The mediator shall disclose any present or prior relationship, personal or professional, between the mediator and any participant or their representative that may affect or give the appearance of affecting the mediator's ability to give impartial regard.

Comments

1. If the mediator has a prior relationship with any participant and has fully disclosed all information required in this Standard, s/he may proceed with the mediation with the consent of all participants.

2. The mediator must exercise his/her judgment and discretion, and must decline to serve, even if the mediation has begun, when:

a. The mediator's judgment is that a relationship with a participant or a participant's representative will compromise the fact or appearance of the mediator's ability to give impartial regard.

b. The mediator believes that, apart from relationships, the fact or appearance of the mediator's ability to give impartial regard is compromised by the mediator's personal biases, views, or reactions to any participant, representative, or position.

IV. Confidentiality

A mediator shall maintain the reasonable expectations of the participants with regard to confidentiality, except where confidentiality or disclosure is required by law.

Comments

1. The mediator must clarify with the mediation participants the degree to which communication with the mediator, including communication during any individual sessions, will be confidential.

2. Various laws set out different requirements regarding confidentiality and disclosure. The mediator should educate him/herself and the participants on the applicable requirements.  

V. Competence

A. A mediator shall mediate only when s/he has the necessary knowledge, skills, and abilities to satisfy the reasonable expectations of the participants.

B. The mediator shall exercise his/her judgment and discretion as to whether s/he is competent to mediate a particular dispute. When the mediator believes that s/he lacks the knowledge, skills and ability to mediate a particular dispute, s/he shall request appropriate assistance, withdraw or decline to serve.

Comments

1. In order to satisfy the reasonable expectations of the participants, the mediator must accurately represent his/her knowledge, skills, and ability to mediate a particular dispute.

2. The mediator should consider factors such as the style of mediation, the subject matter of the dispute, and the specific issues and participants involved when exercising his/her judgment about mediating a particular dispute.

3. A mediator should obtain necessary skills and substantive training, appropriate to his/her area of practice, and should upgrade those skills and training on an on-going basis.

4. A mediator should disclose to the participants the limits of his/her skills or substantive expertise wherever this may be relevant to their mediation.

VI. Encourage Good Faith Participation

The mediator shall encourage participants to participate in good faith. The mediator shall discontinue the mediation if, in his/her reasonable judgment, a participant's bad faith, dishonesty, or nondisclosure is so significant that the fairness and integrity of mediation cannot be maintained.

Comments

1. The mediator must inform participants that it is the obligation of each participant to participate in good faith. The mediator must also inform the participants of the need to be realistic in protecting themselves against possible abuse of the mediation process, since the mediator cannot guarantee that the mediation process will not be abused by any participant.

2. When a mediator believes that a participant is not participating in good faith, such as by nondisclosure or dishonesty, the mediator must encourage that participant to alter the conduct in question. If, after being encouraged to alter the conduct, the participant does not do so, the mediator must decide whether or not to discontinue the mediation.

a) If, in the mediator's reasonable judgment, the participant's bad faith is so significant that the fairness and integrity of mediation cannot be maintained, then the mediator shall discontinue mediation. The mediator shall do so in a manner that does not violate the obligation of confidentiality.

b) If the mediator continues the mediation, the mediator is not obligated to reveal the conduct to the other participant, and may not do so if this would violate the obligation of confidentiality.

VII. Fees

A. The mediator shall fully disclose and explain the basis of any compensation, fees, and charges to the participants.

B. A mediator shall not charge contingent fees or base fees on the outcome of a mediation.

C. A mediator shall not accept a fee for referral of a matter to another mediator or to any other person.

Comments

1. The mediator must inform participants of any fees or charges for which they are responsible.

2. If the mediator receives compensation from a source other than the participants, the mediator must disclose the source, but need not disclose the amount of the compensation.

VIII. Advertising and Solicitation

A mediator shall be truthful in advertising and solicitation for mediation. A mediator shall refrain from promises or guarantees of results.

Comments

1. Advertising or any other communication with the public concerning services offered or regarding the education, training, and expertise of the mediator shall be truthful. No promises or claims of specific results should be made.

2. In an advertisement or other communication to the public, a mediator may make reference to meeting public or private organizational qualifications only if the entity referred to has a procedure for qualifying mediators and the mediator has been granted the requisite status.

IX. Dual-Role Limitations

A. The mediator shall not engage in any non-mediative role during mediation or during the mediation portion of any hybrid process, such as "med-arb."

B. If the mediator has previously served in a non-mediative role with one or more of the participants, the mediator shall not mediate except with the informed consent of all participants.

C. After mediation, the mediator shall not engage in any non-mediative role with any of the participants with respect to the same or significantly related issues, except with the informed consent of all participants.

Comments:

1. "Non-mediative role" includes services as an arbitrator, judge, therapist, lawyer, counselor, etc., but does not include such non-advocacy activities as providing referrals, information, facilitation, education, and/or training about mediation or the subject matter of the mediation.

2. Lawyers, psychologists, social workers, and other professionals who serve as mediators are bound by ethical codes unique to their other profession that may impact the mediator's role. The mediator shall educate himself/herself and the participants concerning any limitations on the mediator's role deriving from other ethical codes.

3. The participants determine the process to be used, including hybrid processes. However, it is not the role of the mediator to provide legal advice, therapy, or counseling to the participants during mediation.

4. Mediators should be sensitive to the fact that subsequent contacts or dealings with participants in any setting may appear to negate prior impartial regard, but are not necessarily prohibited by these Standards.

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