ScotCoach Ethical Guidelines
There are no formal ethical
guidelines for workplace mediation at the moment
generally accepted in the UK. However the following are
the standards of mediation practice jointly defined by
the US Society of Professionals in Dispute Resolution
and the American Arbitration Association and are
applicable to mediation generally.
These guidelines have been adopted by ScotCoach and
provide our clients with guidance on our commitment to
maintaining very high standards of practice.
It is recognized, however, that in some cases the
application of these standards may be affected by local
laws or contractual agreements.
 Download
a copy of the ScotCoach Ethical Guidelines (139kb)
MEDIATOR ETHICS
Preface
The model standards of conduct for mediators are
intended to perform three major functions: to serve as a
guide for the conduct of mediators; to inform the
mediating parties; and to promote public confidence in
mediation as a process for resolving disputes. The
standards draw on existing codes of conduct for
mediators and take into account issues and problems that
have surfaced in mediation practice. They are offered in
the hope that they will serve an educational function
and provide assistance to individuals, organizations,
and institutions involved in mediation.
I.
Self-Determination:
A Mediator Shall Recognize that Mediation is Based on
the Principle of Self-Determination by the Parties.
Self-determination is the fundamental principle of
mediation. It requires that the mediation process rely
upon the ability of the parties to reach a voluntary,
un-coerced agreement. Any party may withdraw from
mediation at any time.
COMMENTS:
The mediator may provide information about the
process, raise issues, and help parties explore options.
The primary role of the mediator is to facilitate a
voluntary resolution of a dispute. Parties shall be
given the opportunity to consider all proposed options.
A mediator cannot personally ensure that each party has
made a fully informed choice to reach a particular
agreement, but it is good practice for the mediator to
make the parties aware of the importance of consulting
other professionals, where appropriate, to help them
make informed decisions.
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II. Impartiality:
A Mediator Shall Conduct the Mediation in an Impartial
Manner.
The concept of mediator impartiality is central to the
mediation process. A mediator shall mediate only those
matters in which she or he can remain impartial and
even-handed. If at any time the mediator is unable to
conduct the process in an impartial manner, the mediator
is obligated to withdraw.
COMMENTS:
A mediator shall avoid conduct that gives the
appearance of partiality toward one of the parties.
The quality of the mediation process is enhanced when
the parties have confidence in the impartiality of the
mediator.
When mediators are appointed by an institution, the
appointing agency shall make reasonable efforts to
ensure that mediators serve impartially.
A mediator should guard against partiality or prejudice
based on the parties' personal characteristics,
background or performance at the mediation.
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III. Conflicts
of Interest:
A Mediator Shall Disclose all Actual and Potential
Conflicts of Interest Reasonably Known to the Mediator.
After Disclosure, the Mediator shall Decline to Mediate
unless all Parties Choose to Retain the Mediator.
The Need to Protect Against Conflicts of Interest also
Governs Conduct that Occurs During and After the
Mediation.
A conflict of interest is a dealing or relationship that
might create an impression of possible bias. The basic
approach to questions of conflict of interest is
consistent with the concept of self-determination. The
mediator has a responsibility to disclose all actual and
potential conflicts that are reasonably known to the
mediator and could reasonably be seen as raising a
question about impartiality. If all parties agree to
mediate after being informed of conflicts, the mediator
may proceed with the mediation. If, however, the
conflict of interest casts serious doubt on the
integrity of the process, the mediator shall decline to
proceed.
A mediator must avoid the appearance of conflict of
interest both during and after the mediation. Without
the consent of all parties, a mediator shall not
subsequently establish a professional relationship with
one of the parties in a related matter, or in an
unrelated matter under circumstances which would raise
legitimate questions about the integrity of the
mediation process.
COMMENTS:
A mediator shall avoid conflicts of interest in
recommending the services of other professionals. A
mediator may make reference to professional referral
services or associations which maintain rosters of
qualified professionals.
Potential conflicts of interest may arise between
administrators of mediation programs and mediators and
there may be strong pressures on the mediator to settle
a particular case or cases. The mediator's commitment
must be to the parties and the process.
Pressure from outside of the mediation process should
never influence the mediator to coerce parties to
settle.
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IV. Competence:
A Mediator Shall Mediate Only When the Mediator has the
Necessary Qualifications to Satisfy the Reasonable
Expectations of the Parties.
Any person may be selected as a mediator, provided that
the parties are satisfied with the mediator's
qualifications. Training and experience in mediation,
however, are often necessary for effective mediation. A
person who offers herself or himself as available to
serve as a mediator gives parties and the public the
expectation that she or he has the competency to mediate
effectively.
COMMENTS:
Mediators should have information available for the
parties regarding their relevant training, education and
experience.
The requirements for appearing on the list of mediators
must be made public and available to interested persons.
When mediators are appointed by a court or institution,
the appointing agency shall make reasonable efforts to
ensure that each mediator is qualified for the
particular mediation.
V. Confidentiality:
A Mediator Shall Maintain the Reasonable Expectations of
the Parties with Regard to Confidentiality.
The reasonable expectations of the parties with regard
to confidentiality shall be met by the mediator. The
parties' expectations of confidentiality depend on the
circumstances of the mediation and any agreements they
may make. The mediator shall not disclose any matter
that a party expects to be confidential unless given
permission by all parties or unless required by law or
other public policy.
COMMENTS:
The parties may make their own rules with respect to
confidentiality, or other accepted practice of an
individual mediator or institution may dictate a
particular set of expectations. Since the parties'
expectations regarding confidentiality are important,
the mediator should discuss these expectations with the
parties.
If the mediator holds private sessions with a party, the
nature of these sessions with regard to confidentiality
should be discussed prior to undertaking such sessions.
In order to protect the integrity of the mediation, a
mediator should avoid communicating information about
how the parties acted in the mediation process, the
merits of the case, or settlement offers. The mediator
may report, if required, whether parties appeared at a
scheduled mediation.
Where the parties have agreed that all or a portion of
the information disclosed during a mediation is
confidential, the parties' agreement should be respected
by the mediator.
Confidentiality should not be construed to limit or
prohibit the effective monitoring, research, or
evaluation of mediation programs by responsible persons.
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VI. Quality
of the Process:
A Mediator Shall Conduct the Mediation Fairly,
Diligently, and in a Manner Consistent with the
Principle of Self-Determination by the Parties.
A mediator shall work to ensure a quality process and to
encourage mutual respect among the parties. A quality
process requires a commitment by the mediator to
diligence and procedural fairness. There should be
adequate opportunity for each party in the mediation to
participate in the discussions. The parties decide when
and under what conditions they will reach an agreement
or terminate a mediation.
COMMENTS:
A mediator may agree to mediate only when he or she
is prepared to commit the attention essential to an
effective mediation.
Mediators should only accept cases when they can satisfy
the reasonable expectations of the parties concerning
the timing of the process. A mediator should not allow a
mediation to be unduly delayed by the parties or their
representatives.
The presence or absence of persons at a mediation
depends on the agreement of the parties and the
mediator. The parties and mediator may agree that others
may be excluded from particular sessions or from the
entire mediation process.
The primary purpose of a mediator is to facilitate the
parties' voluntary agreement. This role differs
substantially from other professional-client
relationships. Mixing the role of a mediator and the
role of a professional advising a client is problematic,
and mediators must strive to distinguish between the
roles. A mediator should, therefore, refrain from
providing professional advice. Where appropriate, a
mediator should recommend that parties seek outside
professional advice, or consider resolving their dispute
through arbitration, counselling, neutral evaluation, or
other processes. A mediator who undertakes, at the
request of the parties, an additional dispute resolution
role in the same matter assumes increased
responsibilities and obligations that may be governed by
the standards of other processes.
A mediator shall withdraw from a mediation when
incapable of serving or when unable to remain impartial.
A mediator shall withdraw from a mediation or postpone a
session if the mediation is being used to further
illegal conduct, or if a party is unable to participate
due to drug, alcohol, or other physical or mental
incapacity.
VII. Advertising and Solicitation:
A Mediator Shall be Truthful in Advertising and
Solicitation for Mediation
Advertising or any other communication with the public
concerning services offered or regarding the education,
training, and expertise of the mediator shall be
truthful. Mediators shall refrain from promises and
guarantees of results.
COMMENTS:
It is imperative that communication with the public
educate and instill confidence in the process.
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VIII. Fees:
A Mediator Shall Fully Disclose and Explain the Basis of
Compensation, Fees, and Charges to the Parties.
The parties should be provided sufficient information
about fees at the outset of a mediation to determine if
they wish to retain the services of a mediator. If a
mediator charges fees, the fees shall be reasonable,
considering among other things, the mediation service,
the type and complexity of the matter, the expertise of
the mediator, the time required, and the rates customary
in the community. The better practice in reaching an
understanding about fees is to set down the arrangements
in a written agreement.
COMMENTS:
A mediator who withdraws from a mediation should
return any unearned fee to the parties.
A mediator should not enter into a fee agreement which
is contingent upon the result of the mediation or amount
of the settlement.
Co-mediators who share a fee should hold to standards of
reasonableness in determining the allocation of fees.
A mediator should not accept a fee for referral of a
matter to another mediator or to any other person.
IX. Obligations to the Mediation Process:
Mediators have a Duty to Improve the Practice of
Mediation.
COMMENT:
Mediators are regarded as knowledgeable in the process
of mediation. They have an obligation to use their
knowledge to help educate the public about mediation; to
make mediation accessible to those who would like to use
it; to correct abuses; and to improve their professional
skills and abilities.
Download
a copy of the ScotCoach Ethical Guidelines (139kb)
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