Lead Article: New Model Standards of Conduct for Mediators

By Professor Joseph B. Stulberg

In December 2004, the Joint Committee on the Model Standards of Conduct for Mediators completed a final draft for a proposed revision to the 1994 Standards and transmitted the document to their sponsoring organizations for adoption. [1] A brief history of this project and a synopsis of the salient changes follows.

Background

During the 1992-94 period, representatives from the American Arbitration Association, the American Bar Association's Section of Dispute Resolution, and the Association for Conflict Resolution [2] developed the Model Standards of Conduct for Mediators. These Standards had three stated 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 1994 Version has performed these functions with remarkable success. Two salient signs of such success are that more than a dozen states adopted it to guide mediator conduct in their various state programs, and multiple educational texts reference it in their discussion of ethical norms for mediators.

During the past decade, however, the use of mediation has grown exponentially. State jurisdictions authorize referrals to mediation across a broad range of cases; Florida, as a single state, reported more than 100,000 cases being mediated in a given year. At the federal level, district and circuit courts have experimented with various mediation initiatives. Mediation service delivery systems vary, with some jurisdictions supporting the development of private market-place mediator services while others hire staff mediators to provide services to all parties without additional cost to them. As the use has grown, so have guidelines and rules; partly in response to the phenomenon that there are now more than 2200 statutory provisions or court rules shaping mediation's use, leaders in the field initiated efforts in the late 1990's that led to the development of the Uniform Mediation Act. And in contexts other than courts, such as peer mediation programs in middle schools and high schools, mediation systems in organizational contexts, and facilitated dialogue to resolve social policy conflicts, mediation's use has become prominent.

Given this expanded use, representatives from the original participating organizations believed it important to review the 1994 Version to assess whether changes were warranted. In September 2002, two designated representatives from each of the three original participating organizations convened. During the September 2002-December 2004 period, the Joint Committee utilized multiple formats to conduct its work: meeting in executive session; conducting public sessions at the various conferences or meetings of the sponsoring organizations; and publishing the Committee's work through a web-site based platform in order to elicit and capture broad-based public comments. Two notably different revised versions of the Standards (January 2004 and September 2004) were posted to the website and the subject of public comment. In December 2004, the Joint Committee, in response to public comment and committee discussion, approved by consensus its final draft of the Standards that it transmitted for approval.

Salient Features

While the Revision contains multiple changes to the current Model Standards, it retains its fundamental features.

Elements Retained

Three elements of the current Standards remain prominent in the Revision. First, the Revision maintains the architecture of having nine distinct Standards; this is notable inasmuch as many court programs and individual agencies, in developing their own standards since 1994, have combined or collapsed several of these Standards. Second, as the Preamble notes, the Standards are designed to serve as fundamental ethical guidelines for persons mediating in all practice contexts; the Revision recognizes, though, as do the current Standards, that mediation practice in selected contexts might require additional standards in order to insure process integrity (examples would include family mediation or environmental dispute resolution mediation). Third, through such language as contained in Standard I (A) on Self-Determination and Standard V (B) on Confidentiality, the Revision systematically reinforces the mediator's duty to conduct a mediation in a manner that promotes mediation's distinctive feature of being a consensual dispute resolution procedure as to both process and outcome.

Notable Changes

The Revision reflects three types of changes that will be immediately apparent to the Reader. These changes include alterations in format and substantive changes prompted by insights gained from increased experience in mediation practice.

The Revision significantly changes the organizational format of the Standards: it divides the statement of each Standard into enumerated paragraphs and sub-paragraphs and eliminates all "hanging paragraphs;" the goal is to facilitate clarity of exposition and public discussion. In addition, the Revision reshapes the language to focus exclusively on guiding mediator conduct; the Standards provide guidelines to other persons or groups connected with administering mediation practice, such as court personnel or program administrators, only in connection with their role in supporting mediator conduct. Finally, the Revision explicitly recognizes and signals to the mediator (Standard I(A)(1)) that Standards may conflict with one another.

Since the 1994 Standards were adopted, mediation practice as a private sector, market-oriented, fee-based service has increased significantly. The Revision responds to this development in several ways. For example, how a mediator's fee is paid could conflict with a mediator complying with his or her duty to remain impartial (Standard II). The conventional wisdom has been that a mediator's fee is paid in equal amounts by the parties to the mediation. The Joint Committee acknowledged, however, that a common, accepted practice in contemporary mediation, particularly in such targeted sectors as employment or personal injury cases, is for one party - typically the defendant - to pay the entire mediator's fee. In the Revised Standard VIII: Fees and Other Charges, the new language explicitly approves of a mediator's fee being paid in unequal amounts by the various parties; however, it adds cautionary guidelines for the mediator, such as disclosure requirements, to make certain that such unequal payments do not undermine a mediator's actual or perceived impartiality.

Public policy has helped improve the collective understanding and consciousness of how to interact effectively with persons protected by such statutes as the American with Disabilities Act and with individuals suffering from physical or emotional abuse. By contemporary practices, the current Standards deal with these matters either inappropriately or not at all. The Revision, in Standard VI (A)(10) and VI(B), attempt to repair this weakness by identifying a mediator's duty when conducting a mediation with persons with recognized disabilities or in cases involving allegations of domestic abuse.

Conclusion

The Revised Model Standards of Conduct embody significant changes in tone, nuance and content for guiding mediator conduct. The Revision, together with the Reporter's Notes that reflect the commentary, history and deliberations of the revision process, warrant the sustained study and reflection of the practitioner and policy community.

[1] The final draft adopted by the Joint Committee on December 29, 2004, together with Reporter Notes, shall be posted in January 2005 at www.moritzlaw.osu.edu/dr. Joint Committee representatives transmitted the document to their respective constituent groups on December 29, 2004 for review.

[2] The Association for Conflict Resolution is the merged organization of three entities: the Academy of Family Mediators, the Conflict Resolution Education Network, and the Society of Professionals in Dispute Resolution. The Society of Professionals in Dispute Resolution was the third participating organization in the development of the 1994 Standards.