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Ethical Standards for Mediators.

Posted on 30/12/2015 · Posted in Financial Litigation, Mediation

Mediation has increasingly become an effective and encouraged form of alternative dispute resolution (‘ADR‘) as a way of resolving a dispute between two parties outside of court, often saving time and money.

Typically a mediator is an objective third party whose role is to facilitate and assist the disputing parties in coming to an agreement. A professional mediator brings his or her experience, knowledge and learned techniques to the table to ensure the most effective outcome to the mediation.

Article 4 of the EU Mediation Directive introduced in 2008 states that to ensure the quality of mediation “Member States shall encourage, by any means which they consider appropriate, the development of, and adherence to, voluntary codes of conduct by mediators and organisations providing mediation services, as well as other effective quality control mechanisms concerning the provision of mediation services“. Furthermore “Member States shall encourage the initial and further training of mediators in order to ensure that the mediation is conducted in an effective, impartial and competent way in relation to the parties.”

In law a man is guilty when he violates the rights of others. In ethics he is guilty if he only thinks of doing so.”
Immanuel Kant

A mediator will employ a variety of techniques, skills and his or her own personality traits in order to help two parties come to an agreement. For example a mediator will use active listening skills to understand and evaluate each party’s presentation of the facts and their state of mind when they do this, and will use their interpersonal skills to establish a good relationship and build trust with each party from the outset of the mediation process. To be a successful mediator one must possess the following qualities:

  • Empathy; a mediator should be adaptable to the different locations and varied personalities he/she will encounter, maintaining a non-judgemental position at all times;
  • Patience and tact; tenacity of purpose can make the difference between a mediator who is merely good and one who is superior, a mediator is not someone who would be easily discouraged by non-cooperation;
  • Alertness; an ability to concentrate and listen to the information provided, constantly evaluating the information for both its value and veracity.

On top of this personal approach that a mediator might employ, a mediator must adhere to some basic ethical standards and a common code of conduct:

A mediator should:

  • Demonstrate competence and professionalism from the outset; a mediator must strike a balance between helping both parties come to a decision whilst aptly guiding them towards the resolution of their dispute.
  • Remain impartial and objective throughout the mediation process; if at any time the mediator is unable to conduct a mediation in an impartial manner the mediator should withdraw.
  • Avoid conflict of interests or reveal any possible conflicts of interests that could arise; a mediator should disclose as soon as practicable all potential conflicts of interest that could reasonably be seen as raising a question about the mediator’s impartiality.
  • Ensure they have the appropriate level of training and expertise in the relevant field; parties should be able to select a mediator that suits their needs based on a mediator’s work and education history.
  • Maintain confidentiality at all times within the framework of the law; unless specified by the parties that the mediator may disclose information, all information should be kept confidential.
  • Ensure all participants understand the mediation process; this may be done in the preliminary stages with the mediator explaining any terminology that is otherwise unclear.
  • Be mindful of the physical and mental wellbeing of all parties involved in the mediation; should either party appear to be distressed or the mediator become aware of any abuse or violence among the parties the mediator should take appropriate steps including, if necessary, postponing, terminating or withdrawing from the mediation; and finally;
  • Ensure both parties have agreed to and are aware of the costs that will be incurred during the mediation process; it is the mediator’s duty to clarify and ensure that both parties accept the remuneration that the mediator intends to apply and that the dates of meetings are agreed on by all involved.

It will be important for anyone seeking to find the right mediator to take into account the mediator’s method and style. As such parties must be clear in defining the type of resolution that they desire before employing a mediator. In low-intensity conflicts parties may seek a more communicative approach and choose a mediator based on their level of expertise, in order to hopefully resume business as normal and gain guidance on how best to do so. However, in more high-intensity conflicts in which parties would rather seek a ‘clean-break’ with the other side, a more directive approach would be desired and a mediator should be selected based on their interpersonal skills and references. For more guidance on how to choose the right mediator for you please see: Our guide.

Expert Evidence Limited is a professional firm concentrating on the four main areas of dispute resolution; acting as expert witnesses in financial litigation, mediation, arbitration and adjudication. The firm has a civil, criminal and international practice and has advised in many recent cases. Areas of specialisation include banking, lending, regulation, investment, and tax.

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