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The Association of
the Bar of the City of New York
The Committee on Alternative
Dispute Resolution
MEDIATION STANDARDS
CHECKLIST
As courts, industries, businesses and other
organizations develop mediation programs, standards will be
critical to fair and effective programs, and to the acceptance
and use of these programs by disputants and their advisors.
While mediation providers may choose to
follow an existing code of conduct [see accompanying resource list], they often develop quality standards tailored to
their own needs. Typically, in developing standards, providers
research existing codes and cull relevant sections. This is a
time-consuming and inefficient process.
The Committee on Alternative Dispute
Resolution of The Association of the Bar of the City of New York
has compiled a list of topics, in outline form, as a guide to
assist system designers. This list is not intended to be
exhaustive; system designers are encouraged to be innovative and
creative. To our knowledge, such a list is not currently
available. The accompanying guide is intended to make the task of
developing mediation standards more efficient and to assist in
creating effective standards.
It is hoped that this list will help
mediation providers – including, but not limited to court
programs, internal corporate ADR programs, community mediation
programs, specialized mediation programs, and states that develop
mediation standards – to consider and identify issues to
include in their standards.
Since this list may be consulted by program
developers who are not familiar with the terms used or with
mediation concepts, a glossary of terms and a resource list of
some representative mediation codes and standards follow for
users’ reference.
For additional information, please contact
The Association of the Bar of the City of New York at
212-382-6623.
1. Definitions
A. Mediation
B. Types of mediation approaches
C. Mediator’s role
2.
Mediator qualifications
A. Prerequisites
i) Mediator training:
a) Type
b) Minimum number of hours
c) Content (basic, specialized)
d) Sponso
e) Critique/evaluation of trainees
ii) Mediation experience: minimum
number and type of cases, minimum number of hours
iii) Specialization
prerequisites/credentials/experience from other fields
iv) Post-training
a) Working under an experienced mediator/mentor,
including being observed and critiqued, co-mediating with mentor, seeking
guidance from mentor
b)Apprenticeship
c)Formal continuing mediator education
(and/or education in specialized area)
B. Formation and Screening for Mediator
Panels
i)Competence
a)Observation/Evaluation
b)Written tests
iii) Other criteria
a) Professional association and other panel
memberships
b) Other professional activities
c) Non-practitioner experience: writing,
teaching, presenting, etc.
d) Mediation references from providers,
parties, trainers
3. Mediator Ethics
A. Duty to inform parties of:
i) Parties’ right to
self-determination regarding
a) Selection of the mediator
b) Voluntary participation in the process
c) Informed and voluntary decision-making
by parties
ii) Right to have a mediation advocate or legal
representative present
iii) Required neutrality and impartiality
of mediator
iv) Mediator conflicts of interest (and duration
of bar to future involvement)
v) Confidentiality
a) Of the process
b) Obligations of the parties and mediator
c) Limits
vi) Mediator style, including
a) Mediation approach
b) Use of caucus/non-caucus/joint session
c) Willingness or resistance to rendering
legal advice or opinion
d) Willingness or resistance to providing
substantive information to parties
e) Level of lawyer or other representative
participation preferred
vii) Binding nature of mediation agreement versus
unsigned memorandum of understanding which is not binding
viii) Mediator fees, expenses, and any exceptions
B. Other mediator obligations to
parties
i)Acknowledging obligation not to accept cases
for which s/he is not qualified
ii) Encouraging parties to consider the
interests of non-participating persons or entities who may be affected by
the mediation
iii) Encouraging parties to consider how
the enforceability and implementation of an agreement may be impacted by
the existence of other agreements, rules or non-participating parties
iv) Referring of parties to mediation advocates
or legal representatives or other sources of information, advice or support
v) Making the process accessible to mediation
participants with disabilities
vi) Taking affirmative steps to address
a party’s lack of capacity to participate effectively in mediation
vii) Complying with program requirements
viii) Assuring fair process
ix) Assuring party and mediator rights
to terminate mediation
x) Refraining from use of coercion or misrepresentation
to influence party decision-making
xi) Working with parties to assess whether
they need any information or guidance, and how to obtain it
C. Other mediator obligations
i) Contributing to the development of the mediation
field
ii) Maintaining and improving professional
skills
4. Mediation Provider
Organization Requirements
(Individuals not associated with programs
should consider self-monitoring on the following issues, until
formal licensing/certification requirements are instituted.)
B. Monitoring mediator competency [see Mediator
Qualifications, above]
i)Screen mediators
ii) Decide training and continuing education
requirements
iii) Subscribe to a specific code of ethics
iv) Monitor mediators’ performance
and adherence to code of ethics
a) Observation & evaluation by provider
b) Evaluation by parties and advocates
B. Case administration
i) Screen cases
a) Assess capacity of parties
b) Match case to appropriate mediator
c) Exclude cases which are inappropriate
for mediation
ii) Maintain confidentiality in administrative
procedures and documents
iii) Refer to qualified mediators
iv) Provide agreement to mediate
v) Provide accommodations if necessary
to make the mediation process accessible to mediation participants –
including mediators --with disabilities
C. Inform parties and representatives
about:
i) Whether entry to mediation is voluntary or
mandatory
ii) The voluntary nature of participation
after entry
iii) Party right to representation
iv) Program and mediation fees
v) The mediation process and procedures
vi) Grievance/complaint mechanisms
vii) Confidentiality limits and rights
viii) Right of any party or mediator to
close the mediation
ix) Extent of mediator immunity from being
sued
x) The effect of an agreement made as a
result of a mediation session
5. Training
A. Content
i) Process
ii) Ethics
iii) Specialized information
B. Methods
i) Appropriate training methods for the potential
settings in which mediation will be conducted
ii) Role plays, using process skills which
are being taught
C. Evaluation
i) Feedback to participants
ii) Evaluation of participants by providers,
and by programs offering certification
iii) Evaluation of training program by
participants
GLOSSARY
The purpose of this glossary is to provide
some basic orientation for Checklist users who are not familiar
with mediation terms used in the Checklist. There are a variety
of ways to define the terms; this should be considered a general
guide, not a definitive one. Checklist users who are not familiar
with mediation concepts are encouraged to consult with mediation
professionals in drawing up their Standards.
Mediation – A process in which
a neutral third person assists disputing parties to reach a
mutually acceptable resolution.
Types of mediation approaches –
Some examples of mediation approaches: "Facilitative"
where the mediator works on assisting the parties to communicate
and collaborate on their resolution; "Evaluative" where
the mediator also provides an opinion as to the likely outcome of
issues or of the entire dispute if it should go to litigation or
another adjudicative procedure.
Co-mediation – Two mediators
mediating a case together.
Apprenticeship – A less
experienced mediator who works under supervision before taking on
cases.
Self-determination – The right
of the parties to make their own uncoerced decisions regarding
their case.
Voluntary participation in the process
– The right of the parties to choose whether or not to
participate in mediation.
Informed and voluntary decision-making
by parties – The parties making a decision based on
knowledge of the consequences of the decision and of any waiver
of rights that may result.
Mediation advocate or legal
representative – An individual who serves as an agent
and advocate for the party, advising, counseling, and/or
presenting the party's views. A representative does not make
decisions on the party's behalf.
Neutrality – Freedom from bias
relating to the issues in a mediation. It is generally recognized
that absolute neutrality is impossible to achieve.
Impartiality -- Freedom from
favoritism and bias in word, action and appearance.
Mediator conflict of interest –
A pre-existing relationship or a condition that might result in
the mediator benefiting from a particular outcome of the
mediation.
Confidentiality – What is said
or produced in the session that the parties and/or the mediator
agree not to reveal outside the mediation session.
Caucus – A private meeting
between the mediator and one party and the party’s
representative.
Joint session – A meeting of
the parties together with the mediator.
Mediation Provider Organization – Institution
or organization offering, managing or administering mediation
services.
RESOURCES
Checklist users may find it helpful to
review some of these resources to get ideas about how to
structure their codes and standards.
"A Due Process Protocol for
Mediation and Arbitration of Statutory Disputes Arising Out of
the Employment Relationship," 5/9/95
www.igc.org/naarb/
(under "Protocol") 212-716-3981
"Ethical Standards of Professional
Responsibility," 6/86
Society of Professionals in Dispute Resolution (SPIDR) www.spidr.org 202-667-9700
"Model Standards of Conduct for
Mediators," 1994
American Arbitration Association/American Bar Association/Society
of Professionals in Dispute Resolution www.adr.org (Under "Rules & Procedures, Ethics &
Standards") 212-716-3981
"Quality Assurances Statement,"
6/96
National Association for Community Mediation (NAFCM) www.nafcm.org (under "News")
202-667-9700
Florida Mediation Code of Conduct -
call 850-921-2910 or e-mail burlisod@flcourts.org.
Standards for Private and Public
Mediators in the State of Hawaii
http://www.state.hi.us/jud/adrstds.htm
(808) 522-6464
Standards of Ethics and Professional
Responsibility for Certified Mediators in Virginia
www.courts.state.va.us/soe/soe.htm
CPR/Georgetown CPR-Georgetown
Commission on Ethics and Standards in
ADR's Model Rule of Professional Conduct for the Lawyer as Third
Party
Neutral.
A number of state mediation codes and
standards of practice for specialized areas are listed on the web
page of the Mediator Information & Resource Center (MIRC) at
<< www.mediate.com/ethics >>
January 26, 2000
© 2000
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