Mediation Standards Checklist

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