CODE OF CONDUCT FOR MEDIATORS
A. OBJECTIVES OF CODE OF CONDUCT FOR MEDIATORS
The main objectives of this Code of Conduct for mediators are as follows:
(a) to provide guiding principles for mediators’ conduct;
(b) to provide a means of protection for the public; and
(c) to promote understanding of and confidence in mediation as a process for
resolving disputes.
B. DEFINITIONS
In this Code of Conduct:
(1) Mediation is a consensual process in which an impartial third party, with no power
to impose a resolution, works with the disputing parties to help them explore and if
possible reach, a voluntary and mutually acceptable resolution of some or all of the
issues in dispute; and
(2) The mediator’s role is to facilitate negotiations by encouraging and assisting
parties:
(a) to actively participate in the mediation process;
(b) to clarify and define the issues to be mediated;
(c) to determine whether and how to resolve their dispute;
(d) to communicate and negotiate fairly and in good faith with each other;
(e) to convey their interests to one another and explore/assess possible settlement
options;
(f) to consider their risks and the strengths and weaknesses of their case; and
(g) to reach agreement if possible, based on informed consent.
C. MEDIATOR RESPONSIBILITIES
(1) Mediators shall maintain professional competency in mediation skills and, where
s/he lacks the skills necessary for a particular case, shall decline to serve or
withdraw from serving as a mediator; and
(2) Mediators providing mediation services that are court-connected shall act in
compliance with this Code of Conduct and any undertakings, Rules, Practice
Directions, Regulations, practices and procedures relevant to the mediation
process.
D. IMPARTIALITY
Mediators shall in word and action, maintain impartiality towards the parties and
the issues in dispute. Where his/her impartiality is in question, s/he shall decline
to serve or withdraw from serving as a mediator.
E. CONFLICTS OF INTEREST
Mediators shall as far as possible, avoid conflicts of interest and shall in any event
resolve all such conflicts in favour of his/her primary obligation to impartially
serve the parties to the dispute.
F. CONFIDENTIALITY
(1) Mediators shall subject to statutory obligations to the contrary, maintain the
confidentiality of all communications made to him/her by the parties within the
mediation process. The exceptions are only:
(a) when the information/documentation discloses an actual or potential threat to
human life;
(b) any report or summary that is required to be prepared by mediators; or
(c) when the information/documentation is non-identifiable (unless all of the
parties otherwise authorize identification), and is used for research, statistical,
accreditation, or educational purposes and is limited only to what is required to
achieve these purposes; and
(2) Mediators shall inform the parties of the confidential nature of mediation,
including any limits to confidentiality applicable to information disclosed during
private sessions (caucuses).
G. PROMOTE UNDERSTANDING
Mediators shall make reasonable efforts to ensure that each party:
(a) understands the operation of the mediation process;
(b) understands the role of the mediator, the parties and others who attend
mediation;
(c) has the opportunity to consider and convey possible options for settlement; and
(d) understands s/he is free to make whatever choices s/he desires regarding
participation in mediation generally and with respect to specific options.
H. SELF-DETERMINATION
(1) Mediators shall respect and encourage self-determination by the parties in their
decision about whether to resolve their dispute and on what terms; and
(2) Mediators have the responsibility to advise unrepresented parties to obtain
independent legal advise, where appropriate.
I. SEPARATION OF MEDIATION FROM LEGAL ADVICE & COUNSELING
Mediators shall limit him/herself solely to the role of mediator, and shall refrain
from giving legal advice or counselling.
J. TERMINATION OR SUSPENSION OF MEDIATION
(1) Mediators shall withdraw from mediation for the reason referred to in paragraph
C(1);
(2) Mediators may suspend or terminate mediation if requested by one or more of the
parties;
(3) Mediators may suspend mediation if in their opinion:
a. the process is likely to prejudice one or more of the parties;
b. one or more of the parties is using the process inappropriately;
c. the mediation process is seen or perceived by the mediator to be detrimental to
one or more of the parties or the mediator;
d. it appears that one party is not acting in good faith; or
e. there are other reasons that are or appear to be counter-productive to the
process; and
(4) Mediators shall terminate mediation if the conditions referred to in J.3.(a)-(e) above
are not rectified.
Extracted in part from “THE DILEMMAS OF MEDIATION PRACTICE – A STUDY OF ETHICAL
DILEMMAS AND POLICY IMPLICATIONS” by Robert A. Baruch Bush, Prof. of Law, Hofstra Law
School. For the National Institute for Dispute Resolution (NIDR) and from the Model Code of
Conduct of the Ontario Bar Association, Canada.