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Arbitration & Mediation: Online Guide to Mediation
Ethics and best practices for mediation provider organizations: 7 years after Georgetown
By Diane Levin
As readers of this blog know, the private practice of mediation in the United States remains unregulated by government. Arguably, this absence of formal regulation, licensing, and credentialing does not diminish mediation?s standing as a profession. It does, however, place weighty responsibility on the shoulders of U.S. mediators, collectively and individually, to protect the reputation of the profession and to build public confidence in mediation services.
Professional standards of conduct remind mediators to aspire to moral values or principles, and to strive for consistency between those values and practice. But a professional ethos embraces more than the practice of mediation: those professional values should apply not to the delivery of services alone, but also to the business of mediation.
In May 2002, as part of a joint initiative, two respected institutions – the CPR Institute for Dispute Resolution and Georgetown University Law Center – drafted and approved Principles for ADR Provider Organizations (PDF). These principles were created to provide guidance to ?any entity or individual which holds itself out as managing or administering dispute resolution or conflict management services? and to encourage the responsible practice of ADR. Among other things, they encompass values that include fairness, quality and accessibility of service, and competence of neutrals; and they emphasize the importance of establishing policies regarding confidentiality, internal or external ethical codes, and conflicts of interest. I have reproduced these principles below.
As I read these principles, the product of evident hard work and deliberation, I note that one essential ingredient is missing: diversity. In revisiting them today, mediators might draw inspiration for revisions from the example set by the Massachusetts Supreme Judicial Court Uniform Rules on Dispute Resolution, Rule 7 (PDF), which provides that:
Programs shall be designed with knowledge of and sensitivity to the diversity of the communities served. The design shall take into consideration such factors as the languages, dispute resolution styles, and ethnic traditions of communities likely to use the services. Programs shall not discriminate against staff, neutrals, volunteers, or clients on the basis of race, color, sex, age, religion, national origin, disability, political beliefs or sexual orientation. Programs shall actively strive to achieve diversity among staff, neutrals, and volunteers.
A 2009 version might emphasize the importance of measures that ensure that decisions relating to hiring, evaluation, and promotion of mediators are free from bias.
I invite you to read the principles yourself and ask: what would you add or change today to improve them for today and for the years ahead?
I. Quality and Competence of Services
- The ADR Provider Organization should take all reasonable steps to maximize the quality and competence of its services, absent a clear and prominent disclaimer to the contrary.
- Absent a clear and prominent disclaimer to the contrary, the ADR Provider Organization should take all reasonable steps to maximize the likelihood that (i) the neutrals who provide services under its auspices are qualified and competent to conduct the processes and handle the kind of cases which the Organization will generally refer to them; and (ii) the neutral to whom a case is referred is competent to handle the specific matter referred.
- The ADR Provider Organization?s responsibilities under Principles I and I.a decrease as the ADR parties? knowing involvement in screening and selecting the particular neutral increases.
- The ADR Provider Organization?s responsibilities under this Principle are continuing ones, which requires the ADR Provider Organization to take all reasonable steps to monitor and evaluate the performance of its affiliated neutrals.
II. Information Regarding Services and Operations
ADR Provider Organizations should take all reasonable steps to provide clear, accurate and understandable information about the following aspects of their services and operations:
- The nature of the ADR Provider Organization?s services, operations, and fees;
- The relevant economic, legal, professional or other relationships between the ADR Provider Organization and its affiliated neutrals;
- The ADR Provider Organization?s policies relating to confidentiality, organizational and individual conflicts of interests, and ethical standards for neutrals and the Organization;
- Training and qualifications requirements for neutrals affiliated with the Organization, as well as other selection criteria for affiliation; and
- The method by which neutrals are selected for service.
III. Fairness and Impartiality
The ADR Provider Organization has an obligation to ensure that ADR processes provided under its auspices are fundamentally fair and conducted in an impartial manner.
IV. Accessibility of Services
ADR Provider Organizations should take all reasonable steps, appropriate to their size, nature and resources, to provide access to their services at reasonable cost to low-income parties.
V. Disclosure of Organizational Conflicts of Interest
- The ADR Provider Organization should disclose the existence of any interests or relationships which are reasonably likely to affect the impartiality or independence of the Organization or which might reasonably create the appearance that the Organization is biased against a party or favorable to another, including (i) any financial or other interest by the Organization in the outcome; (ii) any significant financial, business, organizational, professional or other relationship that the Organization has with any of the parties or their counsel, including a contractual stream of referrals, a de facto stream of referrals, or a funding relationship between a party and the organization; or (iii) any other significant source of bias or prejudice concerning the Organization which is reasonably likely to affect impartiality or might reasonably create an appearance of partiality or bias.
- The ADR Provider Organization shall decline to provide its services unless all parties choose to retain the Organization, following the required disclosures, except in circumstances where contract or applicable law requires otherwise.
VI. Complaint and Grievance Mechanisms
ADR Provider Organizations should provide mechanisms for addressing grievances about the Organization, and its administration or the neutral services offered, and should disclose the nature and availability of the mechanisms to the parties in a clear, accurate and understandable manner. Complaint and grievance mechanisms should also provide a fair and impartial process for the affected neutral or other individual against whom a grievance has been made.
VII. Ethical Guidelines
- ADR Provider Organizations should require affiliated neutrals to subscribe to a reputable internal or external ADR code of ethics, absent or in addition to a controlling statutory or professional code of ethics.
- ADR Provider Organizations should conduct themselves with integrity and evenhandedness in the management of their own disputes, finances, and other administrative matters.
VIII. False or Misleading Communications
An ADR Provider Organization should not knowingly make false or misleading communications about its services. If settlement rates or other measures of reporting are communicated, information should be disclosed in a clear, accurate and understandable manner about how the rate is measured or calculated.
An ADR Provider Organization should take all reasonable steps to protect the level of confidentiality agreed to by the parties, established by the organization or neutral, or set by applicable law or contract.
- ADR Provider Organizations should establish and disclose their policies relating to the confidentiality of their services and the processes offered consistent with the laws of the jurisdiction.
- ADR Provider Organizations should ensure that their policies regarding confidentiality are communicated to the neutrals associated with the Organization.
ADR Provider Organizations should ensure that their policies regarding confidentiality are communicated to the ADR participants.
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