There are clear guidelines that a mediator must follow as part of a successful mediation process. Of upmost importance is the impartiality of the mediator, demonstrating a lack of bias for any party or issue that may be raised during the mediation session. Inherent in that position of impartiality is the avoidance of any conflict of interest, even if slight, that might hinder the openness of either party and deter from the potential success of the process.
Following the necessity of impartiality is the requirement for confidentiality. A mediator must clearly seek to demonstrate that information being discussed with one party is not shared with the other party unless instructed to do so by the protected party. Again, without confidentiality as part of the process, the parties will likely be hindered in sharing information that might be the essential piece that leads to resolution.
Lastly, a mediator should avoid any suggestion that they are providing legal advice or counseling the parties as part of the process, certainly avoiding any impression that the mediator is challenging the legal positions taken by the parties counsel if represented or inferring the validity of claims being asserted by a pro se party. Although it is appropriate for a mediator to offer comments regarding the relative positions taken by the parties during mediation, that evaluation should be limited to the recognition of the inherent risks of litigation. A mediator, even in confidential caucuses, should avoid any appearance that they are acting outside the role of a neutral intermediary, even if a request is made by a party seeking their opinion on the merits of a particular case.
All of these guidelines are part of the central foundation of the mediation process and each includes a level of ethics that must be maintained to uphold the integrity of the process. These guidelines are focused on the role and actions of the mediator, but the parties also share ethical duties when participating in mediation. The parties must recognize that even though the mediation is not in front of a judge and no oaths are taken, it is crucial for the process to work that the parties demonstrate honesty in their representations and seek fairness in the ultimate resolution of the dispute. Mediations will not work if the parties involved actively make statements or present positions that are untrue or unsupportable. Similarly, mediations won’t work if the parties involved seek harm against the other party or insist on taking positions based on malice rather than good will.
The principles of respect, justice, shared well-being and integrity are crucial values that are inherent in a successful mediation process. These ethical standards certainly are not limited to the process of dispute resolution, but hopefully are built within the community norms and rules that individuals apply in their everyday practices. It is always disappointing when disputes arise and litigation ensues, but one of the reasons that mediations work, as well as other forms of alternate dispute resolution, is that the participants ultimately seek truth, fairness and goodwill in the result. If the parties come to the table with these ethical considerations in mind, the disputing parties should be able to factor these standards into their decision making and reach a principled and mutual resolution that provides benefits for all concerned.
For almost thirty years, Scott Zucker has acted as outside legal counsel to a variety of privately held and publicly traded businesses involved in multiple industries. His legal services have ranged from employment, real estate, construction and corporate consulting to representation of companies in the litigation of their financial and business disputes. Scott’s goal is to utilize his legal and business experience to foster the use of Alternative Dispute Resolution to help parties reach resolutions without the time, effort and cost of court litigation. Scott can be reached at [email protected] or 404-364-4626. His ADR service can be found at www.WZdisputes.com.