Mediation Standards of Conduct

In this inaugural column on mediation ethics, we invite you to think about the subject not as a list of black-and-white rules, but rather as a vast constellation of influences shaping our worldview and how we conduct ourselves within that broad expanse, yet remain governed by the rules of the profession.

Personal and Moral Values

Before we ever read a code of conduct, we have already gained a lifetime of experiences, values, assumptions, and beliefs. Those influences shape our personal moral compass and affect how we perceive fairness, honesty, respect, and justice.

Nobody among us enters a mediation room as a blank slate. By the time we arrive, we are already influenced by family dynamics, cultural traditions, religious beliefs, education, economic circumstances, friendships, and professional experiences. We have been shaped by where we grew up, whether in a rural town, a suburban neighborhood, or within a large city.

Race, gender, technology, and the social norms of our generation have long ago left their imprint. Over time, these experiences contribute to the development and maturation of our personal morals and our own sense of ethics.

There is an important distinction between personal morals and professional ethics. They are not one and the same. They may overlap, but they are not coextensive.

That distinction is important. Professional ethics are governed by codes of conduct that establish standards for a particular role or profession. Some view these standards as true ethical obligations; others regard them as rules governing professional behavior. Regardless of perspective, it is possible to violate professional standards without engaging in immoral conduct. A mediator who fails to maintain the appearance of impartiality by protecting a less powerful party, for example, may run afoul of a professional code even though no moral wrongdoing was intended.

Understanding mediation ethics, therefore, requires more than reading the applicable standards. It begins with an appreciation of the lens through which we view the world.

Our conduct as mediators is influenced by personal values that have been developing throughout our lives. Those values do not disappear when we assume the role of neutral. Rather, they accompany us into every mediation session and interact with the professional obligations imposed by our codes of conduct. Appreciating that relationship is the first step toward understanding what mediation ethics truly requires.

Mediation Standards of Conduct

There are several main sources of mediation codes of conduct. The premier set is the Model Standards of Conduct for Mediators (Model Standards), promulgated by the American Bar Association, the American Arbitration Association, and the Association for Conflict Resolution.[1] The Model Standards were adopted in 1994, updated in 2005, and are currently being assessed by a joint committee made up of representatives from the original drafting organizations.[2] Some states have developed their own set of standards of conduct. No matter the source, it is important to consider the legal and ethical force of mediation codes of conduct.

Some view mediation standards of conduct as a compass rather than a rulebook, identifying the principles and professional ideals toward which mediators should continually strive.[3] Others see standards of conduct as the foundation upon which mediation practice is built, establishing the minimum expectations for honesty, integrity, and impartiality.[4] The Preamble to the Model Standards concedes that the Model Standards do not have the force and effect of law unless adopted by a court or other regulatory authority; however, they “might be viewed as establishing a standard of care for mediators.”[5]

Many states whose courts have promulgated ethical codes for mediators adhere to the same theory, claiming that their standards do not create any presumption that a legal duty has been breached and do not give rise to a legal cause of action.[6]

Some states are more explicit. The California Rules of Conduct for Mediators in Court-Connected Mediation Programs for Civil Cases state that its rules do not create a basis for a civil action against a mediator and may not be used to challenge a mediated settlement agreement. The rules specifically state that they are not intended to “[e]stablish a ceiling on what is considered good practice in mediation or discourage efforts by courts, mediators, or others to educate mediators about best practices.”[7]

North Dakota’s court rules acknowledge that they establish standards of conduct for mediators such that “a violation of a rule may be evidence of breach of the applicable standard of conduct,” yet does not “give rise to a cause of action nor should it create any presumption that a legal duty has been breached.”[8]

Some mediation standards recognize that they may have to yield to the precedence of other authorities when they conflict with or are affected by applicable law.[9]

Some standards allow a mediator to be disqualified from a mediation panel in response to a violation of a mediation ethical standard without focusing on a legal duty.[10] Others do not address their legal or ethical effect at all.[11]

The Florida Rules for Certified & Court-Appointed Mediators are one of the most comprehensive state ethical codes for mediators. It is divided into three parts: Mediator Qualifications, Standards of Professional Conduct, and Mediation Certification Applications and Discipline.[12] The Standards of Professional Conduct do not discuss legal or ethical implications of those ethical principles; however, the extensive Mediation Certification Applications and Discipline provide mechanisms to challenge a mediator’s good moral character.[13]

The bottom line is that mediation codes of conduct play an important role in defining appropriate mediator ethical conduct. These codes, however, may provide a simple roadmap without any teeth.

Conclusion

The Model Standards of Conduct, as well as most state standards of conduct, are divided into key mediation values, such as party self-determination, mediator impartiality, conflicts of interest, competence, confidentiality, quality of the process, and more. As this mediation ethics column progresses, we will dive deeper into each ethical value to provide insight regarding ethics for mediators. Subsequent articles will address specific scenarios and the evolving law.

*Susan Nauss Exon is an arbitrator and MC3-certified mediator with the American Arbitration Association, the Riverside County Court Mediation Panel, and privately. She is Professor of Law Emerita at the University of La Verne College of Law, having retired in June 2020, and currently serves as an Adjunct Professor for several universities. Susan holds a Master of Laws (LL.M.) in Dispute Resolution from the Straus Institute at Pepperdine University’s School of Law and has authored numerous articles and book chapters on mediation ethics. Susan can be contacted at susan@susanexon.com.

**Tom Watts is a Fellow of the Chartered Institute of Arbitrators (CIArb) in London and an arbitrator and mediator with the American Arbitration Association, and an MC3-certified mediator. He also serves as an adjunct professor of law, teaching Negotiation, Arbitration, and Mediation. Mr. Watts frequently lectures on topics related to the effective resolution of disputes and holds a Master of Laws (LL.M.) in Dispute Resolution from the renowned Straus Institute at Pepperdine University’s School of Law. With extensive expertise in the arbitration and mediation of commercial, real estate, and construction matters, he brings a wealth of knowledge, experience, and subject matter expertise to his practice. Tom can be contacted at tcw@tcwatts.com.