Last semester, one of my students took the wrong take home exam. So, I prepared a special make up exam which was simple yet required a lot of thought: Rank in terms of importance five of the nine model standards in the Model Standards of Conduct for Mediators and explain why.
The model standards include self-determination, impartiality, conflict of interest, competence, confidentiality, quality of process, advertising and solicitation, fees and other charges, and advancement of mediation practice.
So- I ask you the reader either as a party participant (or attorney advocate) to a mediation or as the mediator, which of these standards would be the five most important to you and why?
Would it be the first standard- self-determination- which is based on the principle of party self-determination by which each party to a mediation has the almost absolute right to make a free and informed choice as to process and outcome? (Yet, recall that at times a mediator may override the party’s self-determination in the name of quality of process.)
Or is impartiality paramount? That is, it is absolutely critical that a mediator act without favoritism, bias or prejudice and avoid all conduct that may give the appearance of partiality? Is this appearance of impartiality the absolute key to a meaningful mediation?
The third standard ties into impartiality as it discusses conflict of interest. A mediator shall avoid a conflict of interest or the appearance of one during and after a mediation. If the mediator determines that a conflict may exist at any point before, during or after a mediation, the mediator must advise the parties and if they consent to waive the conflict, the mediator may proceed but only if doing so does not undermine the integrity of the mediation. So, where should this standard fit in the list of priorities? First? Second? Third? Fourth? Or Fifth?
How important is the competence of the mediator? This standard provides that the mediator should only proceed to mediate “when the mediator has the necessary competence to satisfy the reasonable expectations of the parties.” Here competence includes, “training in mediation, skills, cultural understandings, and other qualities often necessary for mediator competence.” Does this one standard in effect include the three standards discussed above (as my student decided, ranking this as the most important standard) in that a “competent “ mediator is one who is keenly aware of the parties’ self-determination, is keenly aware of being impartial and free of conflicts ?
The next standard is confidentiality- “A mediator shall maintain the confidentiality of all information obtained by the mediator in mediation, unless otherwise agreed to by the parties, or required by applicable law.” To most mediators and parties, this standard is the cornerstone of mediation and thus, an absolute and integral part of any mediation. Many would rank this standard as number 1 in priority. How would you rank it? Would you consider it part of “competency”: a competent mediator is one who maintains confidentiality?
The sixth standard is quality of process which requires the mediator to conduct the mediation “… in a manner that promotes diligence, timeliness, safety, presence of the appropriate participants, party participation, procedural fairness, party competency and mutual respect among all participants.” Is this standard merely redundant of the first five standards? That is, if one adheres to the first five standards one is implicitly providing a quality of process?
Then there is the standard of advertising and solicitation which requires mediators to be truthful and not misleading in their business and practice of mediation. While important, is this standard as important as the others?
Or the standard relating to fees and charges: mediators are to provide each party with a complete breakdown of fees and expenses and any other charges in connection with the mediation. Again, while an important standard, it is probably not as crucial as the others.
And finally, mediators are to act in a manner that advances mediation. Again, an important standard but not high ranking in terms of priority.
So- the most important standards are the first six: self-determination, impartiality, conflict of interest, competence, confidentiality and quality of process. Which five are the most important to you and why?
…. Just something to think about.
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