Early Input Invited on Preliminary Draft of Ethical Standards Released by California Judicial Council Working Group

PRELIMINARY
DRAFT

ETHICAL STANDARDS FOR MEDIATORS IN
COURT-CONNECTED MEDIATION PROGRAMS FOR CIVIL CASES

1. PREAMBLE

These standards are intended to guide the conduct of mediators in
court-connected mediation programs for general civil cases, to inform and
protect participants in mediation, and to promote public confidence in the
mediation process and the courts. As
with other dispute resolution processes, in order for mediation to be
effective, there must be broad public confidence in the integrity and fairness
of the process. Mediators are
responsible to the parties, the public, and the courts for conducting
themselves in a manner that merits that confidence.

COMMENTS: These standards are not
intended to create new civil causes of action.
Nothing in these standards should be deemed to create, augment,
diminish, or eliminate any substantive legal duty of mediators or the
non-disciplinary consequences of violating such a duty.

NOTE: This is similar in concept to the
Preamble section of the CDRC standards, but is more narrowly tailored to
reflect the fact that these are designed to be minimum standards for mediators
court-connected mediation programs, not aspirational goals for the mediation
profession as a whole.

2. APPLICATION

These
standards apply to all mediators when acting in court-connected mediation
programs for general civil cases and establish the minimum standards of conduct
for mediators in those programs.

COMMENTS: Many courts
maintain panels of mediators or make lists of mediators available to civil
litigants. These standards set the
minimum standards of conduct for mediators who are included on these panels or
lists when they are mediating a case in a court-connected program. These standards apply only when a mediator
is acting in a court-connected program; they do no apply when a mediator is
providing services outside of such a court program. Where a panel or list includes firms that provide mediation
services, all mediators affiliated with a listed firm are required to comply
with these standards. These standards
establish only the minimum standards of conduct that must be met in order to
serve in court-connected mediation programs, they are not intended to establish
a ceiling on what is considered good practice in mediation or to discourage
efforts by courts, mediators, or others that encourage mediators to aspire to
the highest standards of professional mediation practice.

NOTE: Because they are intended to be
for the profession as whole, the CDRC standards do not include a specific
application section. The language in
this standard is similar to language from the New Jersey Standards of Conduct
for Mediators in Court-Connected Programs and the Oregon State Mediation
Standards of Practice.

3. DEFINITIONS

3.1 “Mediation”
means a process in which a neutral person or persons facilitate communications
between the disputants to assist them in realizing a mutually acceptable
agreement.

COMMENTS: This
is the same definition of “mediation” as in Evidence Code Section 1115(a).
As used here, “disputant” is synonymous with the term “party” as
defined in this standard.

3.2 “Mediation
consultation” means a communication between a person and a mediator for
the purpose of initiating considering or reconvening a mediation or retaining
the mediator.

COMMENTS: This is the same definition
of “mediation consultation” as in Evidence Code Section 1115(c).

3.3 “Mediator”
means a neutral person who conducts a mediation. “Mediator” includes any person designated by a mediator
either to assist in the mediation or to communicate with the participant in
preparation for a mediation.

COMMENTS: This is the same definition
of “mediator” as in Evidence Code Section 1115(b).

3.4 “Participant” is any
individual taking part in a mediation.

3.5 “Party”
is an individual, entity or group taking part in a mediation, who is either a
plaintiff, defendant, cross-complainant, cross-defendant, or intervenor in the
case.

COMMENTS: An
intervenor is a person who has become a party to the case pursuant to the
procedures set forth in California Civil Code of Procedure Section 387, or any
other statute providing for intervention as a party in a pending lawsuit. See, e.g., Weil & Brown, California
Practice Guide, Civil Procedure Before Trial Sections (Rutter Group 2000)
paragraphs 2:400-2:437.

NOTE: The definitions of mediation,
mediator, and participant in these standards track those in the CDRC standards,
although, unlike CDRC’s standards, these standards do not refer to other names
that might be used to refer to mediators.
The definition of party differs from that in the CDRC standards because
the working group believed it was important to make clear that the
parties/disputants themselves, not their attorneys, held certain powers within
the mediation context, particularly in the area of voluntary
participation/self-determination.

4. VOLUNTARY PARTICIPATION AND SELF
DETERMINATION

Mediators
must conduct mediation in a manner that supports the principles of voluntary
participation and self-determination by the parties, including the following:

(a) Informing the parties at the outset of the process that:

(i)
The parties have a choice as to the nature of mediation process in which they
will be involved, including whether or not the mediator will be called upon to
offer evaluations, opinions, or recommendations about possible outcomes;

(ii)
Resolution of the dispute(s) depends upon an uncoerced consensual
agreement of the parties;

(iii) Any party may withdraw from
the mediation at any time;

(b) Refraining from coercing or improperly influencing a
party to make a decision or unwillingly continue to participate in the
mediation.

COMMENTS: “Self-determination” as used in the standard refers to the
generally accepted fundamental principle of mediation: the ability of the parties
to reach an uncoerced consensual agreement. In so stating, it is recognized
that the mediator, with the agreement of the parties and after first fully
informing the parties of their choices and consequences of such choices, can
invoke a broad range of approaches to assist the parties in reaching an
agreement. Without limitation, and by
way of example only, approaches may include the following without offending the
principle of self-determination:

(a)
Encouraging the parties to continue participating in the mediation when it
reasonably appears to the mediator that the possibility of reaching an
uncoerced consensual agreement has not been exhausted.

(b) Discussing with a party that he or she may consider obtaining
professional advice, including informing a party who is not represented by
counsel, that he or she may consider obtaining legal advice. See also Standard
6.6, Impartiality, Conflicts of Interest, Disclosure and Withdrawal, and
related Comment;

(c) Discussing with the parties issues to address in any proposed
agreement. See also, Standard 8.7, Quality of Mediation Process, and related
Comment.

NOTE: Like CDRC’s Standard 1, this
standard addresses the overall concept of voluntary participation and
self-determination, the parties’ power to decide whether to resolve the dispute
and whether to continue to mediate, and the mediator’s responsibility for
informing the parties about this aspect of mediation. However, the specific language used in this standard differs from
the CDRC standard. The CDRC standard
includes policy statements about the principle of self-determination, whereas
the text of this standard focuses on the minimum standards of conduct for the
mediator and includes the policy statement in the comments.

5. CONFIDENTIALITY

5.1 Except
as otherwise provided by law, court order or the agreement of the parties, all
mediations and mediation consultations are confidential and mediators must
conduct all mediations and mediation consultations in accordance with the
applicable law concerning mediation confidentiality.

COMMENTS: The statutory and common law regarding
mediation confidentiality is evolving rapidly.
Mediators are encouraged to stay abreast of current developments in this
area. At the time that these guidelines are issued, the scope of
confidentiality can be found in Sections 1115 to 1128 of the California
Evidence Code. See also Section 703.5 of the Evidence Code and Rinaker v.
Superior Court, 62 Cal App 4th 155, 74 Cal Rptr 2d 464 (1998).

5.2 No later
than the outset of the first mediation session, mediators must inform the
participants that, except as otherwise provided by law, court order, or the
agreement of the parties, all mediations and mediation consultations are
confidential.

COMMENTS: This standard sets the time frame within
which the mediator must inform the participants about mediation
confidentiality. See also Standard 8.3
and accompanying comments.

NOTE: This standard differs from the CDRC’s Standard
4, which does not state when the mediator must provide this information. Indeed, while the CDRC standard requires the
mediator to preserve confidentiality, it is silent with respect to any duty by
the mediator to inform the participants of this confidentiality.

5.3 If a
mediator speaks separately with one or more of the participants during the
mediation out of the presence of the other participants, the mediator must
first discuss with all participants the mediator’s policy regarding
confidentiality for separate communications with the participants. A mediator must
not disclose confidential information revealed in such separate communications.

COMMENTS: The confidential information described in
this provision refers to specific information revealed by a participant to the
mediator during a separate communication that was not previously revealed
during the mediation session and the participant requests not be revealed to
the other participants.

NOTE: This provision is based largely on CDRC’s
Standard 4B.

5.4
Mediators must not submit or threaten to submit to any person or entity,
including a court, any report, assessment, evaluation, recommendation or
finding of any kind by the mediator concerning the mediation which that
mediator conducted unless all parties in the mediation expressly agree in
writing to permit a report or statement or where required by law.

NOTE: This provision largely follows CDRC’s Standard
4C.

5.5 Mediators
must not use or disclose information acquired confidentially in the mediation
process for personal gain, nor to the detriment of any participant in the
mediation.

NOTE: This topic is not covered in the CDRC standards.

6. IMPARTIALITY,
CONFLICTS OF INTEREST, DISCLOSURE, and WITHDRAWAL

Impartiality

6.1 Mediators
must maintain impartiality toward all participants in the mediation process at
all times. Maintaining impartiality
means conducting the proceedings in a fair and even-handed manner, without
favoring any party over another.

COMMENTS: The
concept of mediator impartiality is central to the mediation process.

NOTE: While
the concept expressed in this standard is consistent with the first sentence of
CDRC’s standard 2, the language used is substantially different. The working group believed that this
language provided a clearer statement of the mediator’s continuing duty to maintain
impartiality and that it was important to provide a definition of impartiality.

Conflicts of
Interest and Requirements Regarding Disclosure

6.2 Mediators must identify and disclose
to all parties all matters known to the mediator which reasonably could raise a
question about the mediator’s ability to conduct the proceedings
impartially. These matters include, but
are not limited to:

(a) the existence of any grounds specified in California
Code of Civil Procedure Section 170.1 for disqualification of a judge; and

(b) interests, relationships, and affiliations of a
personal, professional, or financial nature.
Disclosures required under this Rule include anticipated as well as
current and past interests, relationships and affiliations.

COMMENTS: California
Code of Civil Procedure Section 170.1 generally provides that a judge can be
disqualified if any of the following circumstances are present: (1) the judge
has personal knowledge of disputed facts in the case; (2) within the last two
years the judge or a lawyer with whom the judge was associated in the practice
of law previously served as a lawyer for any of the parties to the case; (3)
the judge has a financial interest in the case; (4) the judge or a close
relative is a party to the case; (5) a lawyer for a party in the case or that
lawyer’s close relative is a close relative of the judge; (6) the judge cannot
be impartial or cannot avoid the appearance of partiality; or (7) a temporary
or permanent impairment prevents the judge from being able to properly conduct
the proceeding. While the circumstances
described in Code of Civil Procedure Section 170.1 do not automatically
disqualify one from acting as a mediator, such circumstances nonetheless must
be disclosed to the parties. The
circumstances listed in (1) through (7) above only paraphrase the provisions of
Section 170.1, and mediators and participants in mediation should read the
actual language of that section for the best guidance.

To aid in determining what types of matters may need to be
disclosed in order to give the parties a fair opportunity to assess the
mediator’s ability to conduct the mediation impartially, mediators and
participants in mediation should also review California Code of Civil Procedure
Sections 170.2, 170.3, subd. (b) and 170.5 (regarding disqualification of
judges); Code of Civil Procedure Section 1281.9, subd. (a) and (e), and
1281.95, subd. (a) (disclosures required of arbitrators in private binding
arbitration); the California Code of Judicial Ethics, Canon 6, subd. D) and
California Rules of Court 244, subd. (c), 244.1, subd. (b), and 244.2, subd.
(c) (ethical duties of temporary judges, referees and court-appointed
arbitrators). While these canons and
code sections by their own terms are not expressly binding on mediators, they
nonetheless describe factors the prudent mediator should consider for guidance
concerning what to disclose.

Mediators should pay particular attention to actual and
potential conflicts of interest. An
actual or potential conflict of interest may exist when the mediator has, had,
or anticipates having a relationship with any of the participants in the
mediation process, or an interest in the subject matter or outcome of the
matter being mediated. However, the
mere existence of conflicts, interests, relationships or affiliations is not
necessarily, by itself, grounds for withdrawal or disqualification of the
mediator. Likewise, the absence of
conflicts, interests, relationships or affiliations
does not necessarily mean the mediator can
conduct the mediation impartially, or should not withdraw or be
disqualified. Determinations concerning
disclosure, disqualification and withdrawal should be made on a case-by-case
basis.

With regard to disclosure of anticipated interests,
relationships, and affiliations, if a mediator, for example, anticipates
forming a partnership in the near future with one of the participants in the
mediation, that should be disclosed even if there is no current or past
relationship between them.

NOTE: Again,
while the concept expressed in this standard is consistent with CDRC’s standard
2A, the language used is substantially different. Because these standards are to apply in a court-connected
context, the working group looked to the language of existing disclosure requirements
applicable to neutrals in court-connected contexts, including Canon 6D of the
Canons of Judicial Ethics and Code of Civil Procedure section 170.1. In this context, the working group believed
that it was appropriate to require mediators to disclose the existence of
grounds for disqualification listed in section 170.1; this is consistent with
the current disclosure requirements for judges, referees, and judicial
arbitrators, as well as private arbitrators.
While the working group recognized that mediation is different from
these adjudicatory processes, it believed that all of the matters listed in
170.1 should also be disclosed by a mediator.

6.3 Mediators’
duty to disclose is a continuing obligation, from the inception of the
mediation process through completion of the mediation. Disclosures required by these standards must
be made as soon as practicable after the mediator becomes aware of a matter
that must be disclosed. To the extent
possible, disclosures should be made prior to the first mediation session, but
in any event within the time required by applicable court rules or statutes.

COMMENTS: Mediators
are encouraged to ask each participant to make a similar effort to disclose any
matters which may affect the mediator’s ability to conduct the mediation
impartially.

NOTE: This
standard includes language similar to that in CDRC’s standard 2A, but in a
different order. This standard also
specifically recognizes that disclosure timeframes may be set by statute or
court rules.

Requirements Regarding Withdrawal

6.4 Except as provided in Standard 6.5
below, if no participant raises any questions or objections after disclosures
are made, the mediator may proceed. If
at any point in the mediation process a participant raises a concern about the
mediator’s ability to conduct the mediation impartially, the mediator may
proceed only after the participants have had the opportunity to consider that
concern and all parties consent to the mediator proceeding with the mediation. If all parties do not consent, the mediator
must withdraw.

COMMENTS: If
a concern about the mediator’s impartiality is raised in a separate
communication intended to be kept confidential from others, in applying this
paragraph the mediator must accommodate applicable rules concerning
confidentiality. See Standard 5.3 and
accompanying comments.

NOTE:
The working group believed that the disclosure procedure outlined in this
standard was consistent with that in CDRC’s standard 2.B. While this standard is drafted to require the
mediator to withdraw if the parties do not consent to proceeding following
consideration of a concern about the mediator’s impartiality, the working group
did not reach consensus as to whether, in such circumstances the onus should be
on the mediator to withdraw unless the parties affirmatively consent to
continue the mediation or if the onus should be on the parties to terminate the
mediation if they do not want the mediator to serve. The working group also discussed at length whether the withdrawal
process in this standard should address concerns raised at any point in the
mediation process or should be more narrowly focused on concerns raised
following disclosures made by the mediator.
Your input on these issues would be particularly appreciated.

6.5 Regardless of the consent of the
parties, mediators must either decline to act as mediator, or if already
acting, must withdraw from the mediation if:

(a) the mediator served as an attorney in the matter in
controversy;

(b) the mediator is or has been a material witness
concerning the matter in controversy;

(c) the mediator cannot maintain impartiality toward all
participants in the mediation process; or

(d) to proceed with the mediation would jeopardize the
integrity of the court or of the mediation process.

COMMENTS: The withdrawal requirements listed in subdivisions
(a) and (b) of this standard are drawn from and are intended to parallel the
provisions of California Code of Civil Procedure Section 170.3, subd.
(b)(2)(B), concerning circumstances in which disqualification of a judge cannot
be waived by the parties.

NOTE:
Subdivisions (c) and (d) are similar to the circumstances that CDRC’s Standards
2B and 3 indicate require mediator withdrawal.
The working group added subdivisions (a) and (b) and the language
concerning jeopardizing the integrity of the court to reflect the fact that, in
a court-connected context, an appearance of bias not only reflects badly on the
mediator, but may reflect badly on the integrity of the court.

Other
Requirements Regarding Conflicts of Interest

6.6 Mediators may recommend to the
parties the use of other services, or particular providers of other services,
but only if

(a) the recommendation is not made in order to serve the
personal or financial interest of the mediator; and

(b) the recommendation does not benefit any party to the
detriment of any other party.

COMMENTS: Occasionally
it may be beneficial for the parties to consider using the services of persons
other than or in addition to the mediator to facilitate the goals of the
mediation. For example, in a business
dispute the parties may want to jointly or separately retain the services of an
accountant, or in a real property construction defect case the parties may want
to retain an architect, engineer or other consultant. This rule allows the mediator to suggest using such a service or
retaining a particular person or provider of a service, but prohibits the
mediator from doing so out of a selfish motive, or where one could reasonably
anticipate that making such a suggestion or recommendation could benefit one
party to the mediation to the detriment of another.

In making such suggestions or recommendations, however,
mediators should be mindful of Standard 8.6, infra, which prohibits
mediators from giving legal or other professional advice to the parties in
mediation. See also Comments to
Standard 5.4.

NOTE: This is
somewhat different from the approach taken in CDRC’s Standard 3 to the issue of
referrals, which requires disclosure of in writing of any personal or financial
interest or relationship if the mediator recommends the services of specific
professionals.

6.7 A person who
has been a mediator in a matter must not accept any professional representation
relating to the matter without the informed written consent of those
affected. W

                        author

Alan Wiener

Alan Wiener received his Juris Doctorate cum laude from the University of San Diego School of Law in 1979, and a Masters of Dispute Resolution from Pepperdine University School of Law in 2000. He conducted a general civil litigation and transaction practice in San Diego for approximately twenty years, and now… MORE >

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