Mediation Guidelines
I. A MEDIATOR SHOULD ENSURE THAT ALL
PARTIES ARE INFORMED ABOUT THE MEDIATOR'S
ROLE AND NATURE OF THE MEDIATION PROCESS,
AND THAT ALL PARTIES UNDERSTAND THE TERMS OF
SETTLEMENT.
A mediator should ensure that all parties
understand and agree to mediation as a
process, the mediator's role in that process
and all parties' relationship to the
mediator. The parties should also understand
the particular procedures the mediator
intends to employ, including whether and in
what manner the mediator may help the
parties evaluate the likely outcome of the
dispute in court or arbitration if they
cannot reach settlement through mediation.
In addition, a mediator should be satisfied
that the parties have considered and
understood the terms of any settlement, and
should, if appropriate, advise the parties
to seek legal or other specialized advice.
If the mediator perceives that a party is
unable to give informed consent to
participation in the process or to the terms
of settlement due to, for example, the
impact of a physical or mental impairment,
the process should not continue until the
mediator is satisfied that such informed
consent has been obtained from the party or
the party's duly authorized representative.
In the event that, prior to or during a
mediation session, it becomes appropriate to
discuss the possibility of combining
mediation with binding arbitration, the
mediator should explain how a mediator's
role and relationship to the parties may be
altered, as well as the impact such a shift
may have on the disclosure of information to
the mediator. The parties should be given
the opportunity to select another neutral to
conduct the arbitration procedure.
II. A MEDIATOR SHOULD PROTECT THE
VOLUNTARY PARTICIPATION OF EACH PARTY.
The right of the parties to reach a
voluntary agreement is central to the
mediation process. Consequently, a mediator
should act and conduct the process in ways
that maximize its voluntaries.
In most cases that are not court-ordered,
parties to the mediation process arrive
willing and able to engage in assisted
negotiation. On infrequent occasions,
however, a mediator may perceive that a
party is being forced into and/or through
the process, for example, by a family member
or representative. In that event, a mediator
should explore carefully with that party and
the other parties, within the bounds of
discretion and confidentiality, whether the
mediation process should proceed, and, in
any case, strive to ensure that the concerns
of the reluctant party regarding the process
are fully addressed.
Court-ordered mediation often carries an
aspect of involuntariness into the process.
A mediator should be sensitive to this
dynamic and assure the parties that although
they have been ordered to attend the
mediation, a settlement can be reached only
if it is to their mutual satisfaction.
III. A MEDIATOR SHOULD BE COMPETENT TO
MEDIATE THE PARTICULAR MATTER.
A mediator should have sufficient knowledge
of relevant procedural and substantive
issues to be effective. It is the mediator's
responsibility to prepare before the
mediation session by reviewing any
statements or documents submitted by the
parties. A mediator should refuse to serve
or withdraw from the mediation if the
mediator becomes physically or mentally
unable to meet the reasonable expectations
of the parties.
IV. A MEDIATOR SHOULD MAINTAIN THE
CONFIDENTIALITY OF THE PROCESS.
It is crucial that the mediator and all
parties have a clear understanding as to
confidentiality before the mediation begins.
Before a mediation session begins, a
mediator should explain to all parties (a)
any applicable laws, rules or agreements
prohibiting disclosure in subsequent legal
proceedings of offers and statements made
and documents produced during the session,
and (b) the mediator's role in maintaining
confidences within the mediation and as to
third parties.
A mediator should not disclose confidential
information without permission of all
parties or unless required by law, court
rule or other legal authority. A mediator
must not use confidential information
acquired during the mediation to gain
personal advantage or advantage for others,
or to affect adversely the interests of
others. If the mediation is being conducted
under rules or laws that require disclosure
of certain information, a mediator should so
notify the parties prior to beginning the
mediation session. In addition, a mediator's
notes, the parties' submissions and other
documents containing confidential or
otherwise sensitive information should be
stored in a reasonably secure location and
may be destroyed 90 days after the mediation
has been completed or sooner if all parties
so request or consent.
V. A MEDIATOR SHOULD CONDUCT THE PROCESS
IMPARTIALLY.
A mediator should remain impartial
throughout the course of the mediation. A
mediator should be aware of and avoid the
potential for bias based on the parties'
backgrounds, personal attributes, or conduct
during the session, or based on any
pre-existing knowledge of or opinion about
the merits of the dispute being mediated. A
mediator should endeavor to provide a
procedurally fair process in which each
party is given an adequate opportunity to
participate. If a mediator becomes incapable
of maintaining impartiality, the mediator
should withdraw promptly.
A mediator should disclose any information
that reasonably could lead a party to
question the mediator's impartiality. A
mediator may proceed with the process unless
a party objects to continuing service. A
mediator should withdraw if a conflict of
interest exists that casts serious doubt on
the integrity of the process.
After a mediation is completed, a mediator
should refrain from any conduct involving a
party, insurer or counsel to the mediation
that reasonably would cast doubt on the
integrity of the mediation process, absent
disclosure to and consent by all parties to
the mediation. This does not preclude the
mediator from serving as a mediator or in
another dispute resolution capacity with a
party, insurer or counsel involved in the
prior mediation.
A mediator should exercise caution in
accepting items of value, including gifts or
payments for meals, from a party, insurer or
counsel to a mediation during or after a
mediation, particularly if the items are
accepted at such a time and in such a manner
as to cast doubt on the integrity of the
mediation process.
A mediator should also avoid conflicts of
interest in recommending the services of
other professionals. If a mediator is unable
to make a personal recommendation without
creating a potential or actual conflict of
interest, the mediator should so advise the
parties and refer them to a professional
referral service or association.
The JAMS Conflict Of Interest Policy
provides additional information regarding
restricted conduct and should be adhered to
by a JAMS mediator.
VI. A MEDIATOR SHOULD REFRAIN FROM
PROVIDING LEGAL ADVICE.
A mediator should ensure that the parties
understand that the mediator's role is that
of neutral intermediary, not that of
representative of or advocate for any party.
A mediator should not offer legal advice to
a party. If a mediator offers an evaluation
of a party's position or of the likely
outcome in court or arbitration, or offers a
recommendation with regard to settlement,
the mediator should ensure that the parties
understand that the mediator is not acting
as an attorney for any party and is not
providing legal advice.
A mediator should be particularly sensitive
to role differences if any party is
unrepresented by counsel at the mediation,
and should explain carefully the limitations
of the mediator's role and obtain a written
waiver of representation from each
unrepresented party. If a mediator assists
in the preparation of a settlement agreement
and if counsel for any party is not present,
the mediator should advise each
unrepresented party to have the agreement
independently reviewed by counsel prior to
executing it.
A mediator should make an effort to keep
abreast of developments within the
mediator's jurisdiction concerning what
constitutes the practice of law. Different
bar associations have issued conflicting
opinions about whether and when a mediator
engages in the practice of law, and certain
states or courts have rules regarding how
and in what manner a mediator may evaluate
the merits of a dispute.
VII. A MEDIATOR SHOULD WITHDRAW UNDER
CERTAIN CIRCUMSTANCES.
A mediator should withdraw from the process
if the mediation is being used to further
illegal conduct, or for any of the reasons
set forth above: lack of informed consent, a
conflict of interest that has not or cannot
be waived, a mediator's inability to remain
impartial, or a mediator's physical or
mental disability. In addition, a mediator
should be aware of the potential need to
withdraw from the case if procedural or
substantive unfairness appears to have
undermined the integrity of the mediation
process.
VIII. A MEDIATOR SHOULD AVOID MARKETING
THAT IS MISLEADING AND SHOULD NOT GUARANTEE
RESULTS.
A mediator should ensure that any
advertising or other marketing conducted on
the mediator's behalf is truthful. A
mediator should not guarantee results,
especially if such guarantee could be
perceived as favoring one type of disputant
or industry over another.
|
