Ethics

Standards of Ethics and Professional
Responsibility for Certified Mediators  

A. Preamble
The Commonwealth of Virginia permits the referral of civil disputes pending in court to mediators certified pursuant to Guidelines adopted by the Judicial Council of Virginia. The referral of cases from the court system to mediation places an important responsibility upon persons who serve as mediators. Mediators shall conduct themselves in a manner that will instill confidence in the mediation process, confidence in the integrity and competence of mediators, and confidence that the disputes entrusted to mediators are handled in accordance with the highest ethical standards.

These standards are not intended to unduly restrict the practice of mediation and recognize the need for flexibility in style and process. These standards are intended to guide the conduct of certified mediators and to promote public and judicial confidence in the mediation process. The comments contained in the body of these Standards are meant to be interpretative of the main text of the standards.

B. Scope
These Standards of Ethics and Professional Responsibility apply to all certified mediators.

C. Assessing the Appropriateness of the Mediation
Prior to agreeing to mediate, and throughout the process, the mediator should determine that:

  1. mediation is an appropriate process for the parties;
  2. each party is able to participate effectively within the context of the mediation process; and
  3. each party is willing to enter and participate in the process in good faith.

If in the judgment of the mediator the conditions specified in (1) through (3) are not met, the mediator shall not agree to mediate or, if the concerns arise after the process has begun, shall consider suspending or terminating the process.

Comment: Virginia Code § 8.01-576.5 allows a court to refer any contested civil matter to a dispute resolution orientation session. “Orientation session” is defined in Virginia Code § 8.01-576.4 as a preliminary meeting during which the parties and the neutral assess the case and decide whether to continue with a dispute resolution proceeding or adjudication. A major goal of the orientation session is to educate the parties about dispute resolution processes available to them, such as mediation.

The orientation session can also play an important role as an assessment tool. Assessment as to whether a case is appropriate for a dispute resolution process like mediation, may involve, particularly in family cases, separate screening interviews with the clients. Where appropriate, these interviews should include specific questions regarding violence and abuse (physical, emotional, and verbal abuse and/or threats), child abuse/neglect, drug and/or alcohol use, and balance of power. In cases where separate screening interviews have been conducted by an intake specialist or organization, such as a court program or community mediation center, such screening will meet the requirements of this section. This in no way relieves the mediator from continual assessment of appropriateness throughout the mediation process.

D. Initiating the Process

  1. Description of Mediation Process. The mediator shall define mediation and describe the mediation process to the parties and their attorneys, if present.
    1. Mediation is a process in which a neutral facilitates communication between the parties and, without deciding the issues or imposing a solution on the parties, enables them to understand and to reach a mutually agreeable resolution to their dispute.
    2. The description of the process shall include an explanation of the role of the mediator.
    3. The mediator shall also describe his style and approach to mediation. The parties must be given an opportunity to express their expectations regarding the conduct of the mediation process. The parties and mediator must include in the agreement to mediate a general statement regarding the mediator’s style and approach to mediation to which the parties have agreed.
    4. The stages of the mediation process shall be described by the mediator.
  2. Procedures
    1. Prior to commencement of a court-referred mediation, the mediator shall inform the parties in writing of the following:
      1. The mediator does not provide legal advice.
      2. Any mediated agreement may affect the legal rights of the parties.
      3. Each party to the mediation has the opportunity to consult with independent legal counsel at any time and is encouraged to do so.
      4. Each party to the mediation should have any draft agreement reviewed by independent counsel prior to signing the agreement.
    2. In all other cases, the mediator shall inform the parties, orally or in writing, of the substance of the following:
      1. The mediator does not provide legal advice.
      2. Any mediated agreement may affect the legal rights of the parties.
      3. Each party to the mediation has the opportunity to consult with independent legal counsel at any time and is encouraged to do so.
      4. Each party to the mediation should have any draft agreement reviewed by independent counsel prior to signing the agreement.
    3. The mediator shall reach an understanding with the participants regarding the procedures which may be used in mediation. This includes, but is not limited to, the practice of separate meetings (caucus) between the mediator and participants, the involvement of additional interested persons, the procedural effect on any pending court case of participating in the mediation process, and conditions under which mediation may be terminated by the mediator.
    4. If the mediation is conducted in conjunction with another dispute resolution process, such as arbitration, and the same neutral conducts both processes, the mediator must describe to the parties the procedures to be followed in both processes clearly, prior to entering into the agreement to mediate.

Comment: In section D.1.b., the description of the mediation process may include an explanation of the role of the mediator as that of a facilitator, not advocate, judge, jury, counselor or therapist. The role of the mediator also includes, but is not limited to, assisting the parties in identifying issues, reducing obstacles to communication, maximizing the exploration of alternatives, and helping the parties reach voluntary agreements.

In Section D.1.d., the stages of mediation should include at a minimum, an opportunity for all the parties to be heard, the identification of issues to be resolved in mediation, the generation of alternatives for resolution, and, if the parties so desire, the development of a Memorandum of Understanding or Agreement.

In Section D.2.b., the primary role of the mediator is to facilitate the voluntary resolution of a dispute. In order to ensure that parties make informed decisions, mediators should make the parties aware of the importance of consulting other professionals. Particularly where legal rights are involved or the parties’ expectation is to enter into a binding and enforceable agreement, clear notification of the information in (b)1-4 is essential. A mediator can most effectively verify that he or she has informed the parties of the items listed in (b)1-4 if these items are put in writing.

E. Self Determination

  1. Mediation is based on the principle of self-determination by the parties. Self-determination requires that the mediator rely on the parties to reach a voluntary agreement.
  2. The mediator may provide information about the process, raise issues, and help explore options. The primary role of the mediator is to facilitate a voluntary resolution of a dispute.
  3. The mediator may not coerce a party into an agreement, and shall not make decisions for any party to the mediation process.
  4. The mediator shall promote a balanced process and shall encourage the parties to conduct the mediation in a collaborative, non-adversarial manner.
  5. Where appropriate, the mediator shall promote consideration of the interests of persons affected by actual or potential agreements who are not present or represented at the mediation.

F. Professional Information

  1. The mediator shall encourage the participants to obtain independent expert information and/or advice when such information and/or advice is needed to reach an informed agreement or to protect the rights of a participant.
  2. A mediator shall give information only in those areas where qualified by training or experience.
  3. When providing information, the mediator shall do so in a manner that will neither affect the parties’ perception of the mediator’s impartiality, nor the parties’ self-determination.

G. Impartiality

  1. A mediator shall be impartial and advise all parties of any circumstances bearing on possible bias, prejudice, or impartiality. Impartiality means freedom from favoritism or bias in word, action, and appearance. Impartiality implies a commitment to aid all parties in moving toward an agreement.
  2. A mediator shall avoid conduct which gives the appearance of partiality towards one of the parties. A mediator should guard against partiality or prejudice based on the parties personal characteristics, background, or performance at the mediation.
  3. If at any time the mediator is unable to conduct the process in an impartial manner, the mediator is obligated to withdraw.

H. Conflicts of Interest

  1. The mediator has a duty to remain free from conflict of interest that could in any way affect the ability of the mediator to conduct a neutral and balanced process.
  2. A mediator must disclose any current, past, or possible future representation or relationship with any party or attorney involved in the mediation. Disclosure must also be made of any relevant financial interest. All disclosures shall be made as soon as possible after the mediator becomes aware of the interest or relationship.
  3. After appropriate disclosure, the mediator may serve if the parties so desire.

I. Confidentiality

  1. The mediator has the obligation, prior to the commencement of the mediation, to inform the parties of the following and to determine that the parties have a reasonable understanding thereof:
    1. all memoranda, work products and other materials contained in the case files of a mediator or mediation program are confidential;
    2. any communication made in or in connection with the mediation which relates to the controversy being mediated, including screening, intake and scheduling a dispute resolution proceeding, whether made to a mediator or dispute resolution program staff or a party, or to any other person, is confidential;
    3. a mediated agreement signed by the parties shall not be confidential, unless the parties otherwise agree in writing;
    4. allegations of child abuse are not confidential as mediators are mandatory reporters of such information;
    5. in reporting on the outcome of the dispute resolution proceeding to the referring court, the neutral shall indicate whether an agreement was reached, the terms of the agreement if authorized by the parties, the fact that no agreement was reached, or the fact that the orientation session or mediation did not occur. The neutral shall not disclose information exchanged or observations regarding the conduct and demeanor of the parties and their counsel during the dispute resolution proceeding, unless the parties agree otherwise.
  2. The mediator further has a duty to explain that confidential materials and communications are not subject to disclosure in discovery or in any judicial or administrative proceeding except:
    1. where all parties to the mediation agree, in writing, to waive the confidentiality;
    2. in a subsequent action between the mediator and a party to the mediation for damages arising out of the mediation;
    3. statements, memoranda, materials and other tangible evidence, otherwise subject to discovery, which were not prepared specifically for use in and actually used in the mediation;
    4. where a threat to inflict bodily injury is made;
    5. where communications are intentionally used to plan, attempt to commit, or commit a crime or conceal an ongoing crime;
    6. where an ethics complaint is made against the neutral by a party to the dispute resolution proceeding to the extent necessary for the complainant to prove misconduct and the neutral to defend against such complaint;
    7. where communications are sought or offered to prove or disprove a claim or complaint of misconduct or malpractice filed against a party’s legal representative based on conduct occurring during a mediation;
    8. where communications are sought or offered to prove or disprove any of the grounds listed in Virginia Code § 8.01-576.12 in a proceeding to vacate a mediated agreement; or
    9. as provided by law or rule.
  3. If the mediator has established specific exceptions to the general rule of confidentiality, they must be disclosed to the parties at the start of the mediation. Consistent with the rules set out here, the parties must agree, in writing, to waive confidentiality with respect to those issues.

J. Agreement
The mediator has no vested interest in the outcome of the mediation; therefore, the mediator must encourage the parties to develop their own solution to the conflict. The mediator may suggest options for the parties to consider, only if the suggestions do not affect the parties’ self-determination or the mediator’s impartiality. The mediator may not recommend particular solutions to any of the issues in dispute between the parties nor coerce the parties to reach an agreement on any or all of the issues being mediated.

Prior to the parties entering into a mediated agreement, the mediator has the obligation to determine that:

  1. the parties have considered all that the agreement involves and the possible ramifications of the agreement;
  2. the parties have also considered the interests of other persons who are not parties to the mediation but are affected by the agreement; and
  3. the parties have entered into the agreement voluntarily.

The mediator shall encourage review of any agreement by independent counsel for each of the parties prior to the mediated agreement being signed by the parties.

If the mediator has concerns about the possible consequences of a proposed agreement or that any party does not fully understand the terms of the agreement or its ramifications, the mediator has the obligation to raise these concerns with the parties. Under circumstances in which the mediator believes that manifest injustice would result if the agreement was signed as drafted, the mediator shall withdraw from the mediation prior to the agreement being signed.

K. Level of Skill or Expertise

  1. The mediator has the obligation to refuse a referral if he or she believes that the referral would require skill that would exceed his/her current level of expertise.
  2. If a mediator determines during the course of a mediation that a lack of technical knowledge or skill impairs or is likely to impair the mediator’s effectiveness, the mediator shall notify the parties and may withdraw of his own accord or if requested by any party.

L. Quality of the Process

  1. A mediator shall conduct the mediation diligently and shall not prolong the mediation for the purpose of charging a higher fee.
  2. If, in the mediator’s judgment, the integrity of the process has been compromised by, for example, inability or unwillingness of a party to participate meaningfully, gross inequality of bargaining power or ability, gross unfairness resulting from nondisclosure or fraud by a participant, the mediator shall inform the parties. The mediator shall discontinue the mediation in such circumstances, but shall not violate the obligation of confidentiality.

M. Fees

  1. A mediator shall fully disclose compensation, fees, and charges to the parties.
  2. A mediator shall not charge a contingent fee or fee based upon the outcome of the mediation.
  3. A mediator shall not give or receive any commission or other monetary or non-monetary form of consideration in return for referral of clients for mediation services.

Comment: Section M.3. is not intended to preclude a dispute resolution organization or program from receiving a commission or consideration for acceptance of a case which it then refers to a member of the organization’s panel of neutrals.

N. Advertising
A mediator shall be truthful in advertising and solicitation for mediation.

O. Community Service
The mediator is encouraged to provide pro bono or reduced fee services to the community, where appropriate.

P. Additional Responsibilities
These Standards are not intended to be exclusive and do not in any way limit the responsibilities the mediator may have under codes of ethics or professional responsibility promulgated by any other profession to which the mediator belongs or any other code of ethics or professional responsibility to which the mediator subscribes, such as those promulgated by the Society of Professionals in Dispute Resolution or the Academy of Family Mediators.