City Bar Center for Continuing Legal Education NEW YORK CITY BAR

42 West 44th Street, New York, New York 10036

Selected Ethics Issues in Mediation & Settlement Negotiations

Tuesday, June 21, 2016

9 am – 12 pm

Sponsoring Association Committee: Alternative Dispute Resolution | Nancy Kramer, Chair

Selected Ethics Issues in Mediation & Settlement Negotiations

Tuesday, June 21, 2016

Program Chair

Daniel M. Weitz Deputy Director, Division of Professional and Court Services

Coordinator, Office of ADR Programs New York State Unified Court System

Faculty

Alexandra Carter Clinical Professor of Law and Director of Clinical Programs

Director, Edson Queiroz Foundation Mediation Program Columbia Law School Mediation Clinic

Bruce J. Hector

President Accordance, LLC

Professor Sean Nolon

Director, Dispute Resolution Program Professor of Law, Vermont Law School

Ombudsman, Dartmouth College

Selected Ethics Issues in Mediation & Settlement Negotiations

Tuesday, June 21, 2016

9 am – 12 pm

Agenda

9:00 am – 9:05 am

Introduction Daniel M. Weitz

9:05 am – 9:15 am

Sources of Guidance for Ethics Issues Involving Mediation and Settlement Alexandra Carter and Daniel M. Weitz

9:15 am – 9:55 am

Differing Views of Mediator Neutrality Among Professional Standards Sean Nolon

9:55 am – 10:35 am

Avoiding Extortion and Other Coercive Tactics in Mediation Alexandra Carter

10:35 am – 10:50 am Break

10:50 am – 11:05 am

Thinking About How We Think About Ethics Daniel M. Weitz

11:05 am – 11:45 am

Truthfulness in Mediation and Negotiation Bruce J. Hector

11:45 am – 12:00 pm

Q & A

NY CLE: 3.0 ethics This live program provides transitional/non-transitional credit for all attorneys.

NJ CLE: 3.2 professional responsibility CA CLE: 3.0 professional responsibility PA CLE: 2.5 professional responsibility

Selected Ethics Issues in Mediation & Settlement Negotiations

Tuesday, June 21, 2016

Table of Contents

Notes on Faculty .................................................................................................................. i Suggested Reference Materials ............................................................................................1 Ethical Guidance for Members of the Environment and Public Policy, Association for Conflict Resolution (September 2011) ...............................................................................2

Reprinted by permission from the Association for Conflict Resolution. Standards of Conduct for New York State Community Dispute Resolution Center Mediators, New York State Unified Court System Division of Professional and Court Services – Office of ADR Programs ..................................................................................35 Model Standards of Conduct for Mediators, American Arbitration Association (Adopted September 8, 2005) ............................................................................................53

Reprinted by permission from the American Arbitration Association. Model Standards of Practice for Family and Divorce Mediation, Association of Family and Conciliation Courts (2000) ..........................................................................................63 Accessible here: http://www.afccnet.org/Portals/0/PublicDocuments/CEFCP/ModelStandardsOfPracticeForFamilyAndDivorceMediation.pdf

Reprinted by permission from the Association of Family and Conciliation Courts.

Ethical Issues in Settlement Negotiations (PPT) ...............................................................75 By: Bruce J. Hector

Mandatory CLE Information ............................................................................................... I

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Notes on Faculty

Alexandra Carter is a Clinical Professor of Law at Columbia University and joined the faculty in 2008 with expertise in mediation and civil litigation. She is the Director of the Law School's Clinical Programs and she directs the Edson Queiroz Foundation Mediation Program. Carter, who has taught courses on mediation to many differing groups from the private and public sectors, as well as to academic audiences abroad in Brazil and the Netherlands, is a strong advocate of mediation as a valuable tool for many kinds of legal challenges. She also serves on the Mediator Ethics Advisory Committee for the New York State Unified Court System. Under Carter’s supervision, students in the Mediation program mediate a wide range of cases involving commercial, employment discrimination, housing and family disputes. Prior to joining the Columbia faculty, Carter was associated with Cravath, Swaine & Moore LLP, where she worked as part of a team defending against a multibillion dollar securities class-action lawsuit related to the Enron collapse, served as the senior antitrust associate on several multibillion dollar mergers, and handled cases involving copyright law. Earlier in her career, Carter worked as a private equity analyst with Goldman Sachs in New York from 1998 to 2000, then enrolled at Columbia Law School, where she took the Mediation Clinic, and later worked as a teaching assistant in the clinic under Professor Liebman. Carter also was an articles editor for the Journal of Transnational Law. While a student at the Law School, where she earned James Kent and Harlan Fiske Stone academic honors, Carter won two significant prizes: the Jane Marks Murphy Prize for clinical advocacy; and the Lawrence S. Greenbaum Prize for best oral argument in the 2002 Harlan Fiske Stone Moot Court Competition. Carter clerked for the Hon. Mark L. Wolf, U.S. District Court for the District of Massachusetts in Boston, from 2003-2004. Carter majored in English and minored in Mandarin Chinese at Georgetown University, earning her B.A. in 1997. She spent 1997-98 in Taiwan on a Fulbright Scholarship, where she researched Taiwan's contemporary literature to assess the political tensions at the time between those who wanted the island to assert independence and those who favored reunification with the Republic of China. Bruce J. Hector is currently a mediator with Accordance LLC, which he established to provide mediation and consulting services in civil commercial matters. He is currently listed on the roster of mediators, and has mediated cases for, the New York Supreme Court, Commercial Division, the United States District Court for the Southern District of New York, the United States Bankruptcy Court for the Eastern District of New York, and the New Jersey Superior Court. Previously, he was Associate General Counsel and Chief Litigation Counsel with Becton, Dickinson and Company (BD), a Fortune 500 health care manufacturer located in Franklin Lakes, New Jersey. His responsibilities there included supervision of all litigation and advising on preventive law, crisis management, and product related issues. Prior to joining BD, Mr. Hector practiced law in New York City, concentrating in civil litigation. Mr. Hector also served as President of the New Jersey Corporate Counsel Association, a chapter of the American Corporate Counsel Association (ACCA) from 2001-2003. He has previously served as a speaker or panelist for the New York City Bar, ICLE, ACCA and other organizations on many occasions, and has co-authored an article on litigation management in the ACCA Docket. Mr. Hector received an A.B. from Holy Cross College, and his J.D. from N.Y.U. Law School. Currently, he is a member of the New Jersey Association of Professional Mediators, as well as the Alternative Dispute Resolution Sections of the New York State Bar Association, the New Jersey Bar Association, and the ABA. He also serves on the Inside-Outside Counsel Litigation Group of the New York City Bar, and is admitted to practice in New York and New Jersey.

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Sean Nolon is a Professor of Law at Vermont Law where he directs the Dispute Resolution Program. He is also the Ombuds at Dartmouth College. He has extensive experience as a negotiator, mediator and litigator. As a trial attorney, he coordinated litigation in environmental, land use, class action and commercial cases for public, private, and not-for-profit clients. He has mediated a full range of cases in communities and in courts for almost two decades. He has trained hundreds of students, mediators, lawyers, judges, local officials, planners and developers in areas of law and consensus building. He served as the founding director of the Theodore Kheel Center on Environmental Interest Disputes and directed the Land Use Law Center at Pace University School of Law School. Professor Nolon has taught at Yale, Pepperdine, UNLV, Northeastern and Pace. He is the author and co-author of numerous articles, books and chapters. His articles have been published in the law journals of Florida Law School, Cardozo, Idaho, Pace, and Fordham. The Massachusetts Supreme Court has cited Professor Nolon’s scholarship on zoning law.

Daniel Weitz is the Deputy Director of the Division of Professional and Court Services and Statewide Coordinator of the Office of ADR Programs for the New York State Unified Court System. As ADR Coordinator, Dan oversees a statewide program of court-annexed ADR initiatives involving mediation, arbitration, neutral evaluation, parenting coordination and collaborative law. He also directs the Community Dispute Resolution Centers Program. Dan serves as Co-Counsel to the Board of Governors of the New York State Attorney-Client Fee Dispute Resolution Program. He is a past Chair of the New York City Bar Association ADR Committee and past Co-Chair of the ABA Dispute Resolution Section, Court ADR Committee. Dan has also served on the NYC Bar Domestic Violence and Science and Law Committees. Dan was appointed by New York’s Chief Judge to serve on the Unified Court System’s Matrimonial Commission for which he Co-Chaired the Subcommittee on The Use of Experts. He also served as Counsel to the Technology and Case Management Subcommittee of the New York State Judicial Advisory Council. Dan has over sixteen years of experience as a court administrator and twenty five years of experience in the field of ADR, serving as an administrator, professor, trainer and practitioner. He is an Adjunct Clinical Professor of Mediation at Cardozo School of Law, an Adjunct Professor of Clinical Law at NYU School of Law and has taught ADR and conflict resolution related courses at Vermont Law School, Hamline University School of Law, John Jay College of Criminal Justice and Long Island University. Dan is an international ADR speaker having presented across the United States and beyond including Japan, China, Thailand and South Africa. He has also served as mediator in a wide range of matters including, general civil, family, employment, human rights, community, and police conduct cases. Dan is a past recipient of The Lawyers Committee Against Domestic Violence “In the Trenches Award” Recognizing Indomitable Courage, Vision and Dedication to Ending Domestic Violence and The New York City Bar Bernard Botein Award for Outstanding Contributions to the Administration of the Courts. Dan received his law degree from the Benjamin N. Cardozo School of Law, where he participated in the Mediation Clinic and was a Teaching Assistant in Legal Negotiation. He worked at JAMS, the United States Court of Appeals for the Second Circuit (The Civil Appeals Management Plan), and served as an original member of FutureLinks Inc., working in South Africa with youth leaders from all backgrounds to conduct workshops in non-violent social change, conflict resolution, and community development.

MRPC Rule 1.6: Confidentiality of Information

Suggested Reference Materials

Client-lawyer Relationship Accessible at: http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_6_confidentiality_of_information.html MRPC Rule 4.1: Truthfulness in Statements to Others

Transactions With Persons Other Than Clients Accessible at: http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_4_1_truthfulness_in_statements_to_others.html MRPC Rule 8.4: Misconduct Maintaining The Integrity Of The Profession

Accessible at: http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_8_4_misconduct.html

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Ethical Guidance for Members of the Environment and Public Policy Section,

Association for Conflict Resolution

September 2011

Compiled by Ethics Committee, Environment and Public Policy Section

Association for Conflict Resolution

Practitioner members Janice Fleischer, former private practitioner with Flash Resolutions,

presently Director, Florida Dispute Resolution Center, Florida Supreme Court, chair Frank Blechman, private practitioner, Virginia

Elaine Hallmark, retired, former Director, Oregon Consensus, Portland State University Ken Rosenbaum, Sylvan Environmental Consultants, Virginia, reporter & co-chair

Resource members

Joan Calcagno, former Roster Manager, presently Sr. Program Manager, US Institute for Environmental Conflict Resolution, Arizona

Sharon Press, former Director, Florida Dispute Resolution Center, Florida Supreme Court, presently Associate Professor of Law and Director, Dispute Resolution Institute

Hamline University School of Law, Minnesota

Mentee Patricia L. Bradley, Director, Global Leadership Training Institute

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Table of Contents  INTRODUCTION...................................................................................................................................... 3  VOLUNTARY  ETHICS  GUIDANCE  FOR  EPP  SECTION  MEMBERS.............................................. 6  DEFINITIONS  &  CONSTRUCTION.............................................................................................................................6  PRINCIPLE  I.  SELF-­‐DETERMINATION ....................................................................................................................8  PRINCIPLE  II.  IMPARTIALITY...................................................................................................................................9  PRINCIPLE  III:  CONFLICTS  OF  INTEREST ........................................................................................................... 10  PRINCIPLE  IV.  COMPETENCE ............................................................................................................................... 12  PRINCIPLE  V.  CONFIDENTIALITY......................................................................................................................... 14  PRINCIPLE  VI.  QUALITY  OF  THE  PROCESS........................................................................................................ 15  PRINCIPLE  VII.  ADVERTISING  AND  SOLICITATION........................................................................................... 18  PRINCIPLE  VIII.  FEES  AND  OTHER  PROFESSIONAL  CHARGES ....................................................................... 19  PRINCIPLE  IX.  ADVANCEMENT  OF  THE  PRACTICE ........................................................................................... 21  PRINCIPLE  X.  MAINTAINING  THE  INTEGRITY  OF  THE  PROFESSION.............................................................. 22  

ANNEX  I:  SUMMARY  OF  ETHICAL  PRINCIPLES  FOR  EPP  SECTION  MEMBERS .................24  ANNEX  II:  MODEL  STANDARDS  OF  CONDUCT  FOR  MEDIATORS..........................................25  ANNEX  III:  ACR  ETHICAL  PRINCIPLES...........................................................................................32  

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 Introduction

    This  document  offers  a  collection  of  guides  to  ethical  behavior  for  members  of  the  Association  for  Conflict  Resolution’s  (ACR’s)  Environment  and  Public  Policy  (EPP)  Section.  It  contains  one  set  of  voluntary  guidance  from  the  EPP  Section  and  two  sets  of  guidance  adopted  by  the  full  association.         The  first  guide,  “Voluntary  Guidance  for  EPP  Section  Members,”  reflects  six  years  of  discussions  within  the  section’s  ethics  committee,  with  feedback  from  Section  members,  peer  review,  and  advice  and  direction  from  the  Section’s  Leadership  Council.  The  Leadership  Council  adopted  these  voluntary  guidelines  in  2011,  considering  them  as  a  practical  resource  and  tool  for  Section  members.         The  Voluntary  Guidance  consists  of  definitions,  principles,  guidelines,  and  discussions.  This  document  also  summarizes  the  principles  separately,  on  a  single  page  for  easy  reference,  in  Annex  I.         The  other  two  guides,  from  the  full  association,  are  the  Model  Standards  of  Conduct  for  Mediators  (Annex  II)  and  the  ACR  Ethical  Principles  (Annex  III).  The  Model  Standards  stem  from  a  collaboration  of  ACR,  the  American  Bar  Association,  and  the  American  Arbitration  Association.  The  Model  Standards  apply  to  ACR  members  when  they  mediate.  The  Ethical  Principles  are  a  2010  product  of  the  ACR  ethics  committee.  By  their  terms,  they  are  “universal  Ethical  Principles  for  ACR  that  will  guide  practice  standards  for  all  ACR  neutrals  and  be  in  compliance  with  existent  behavioral  standards  for  dispute  resolution  processes  contemplated  by  the  various  Sections  of  the  organization.”          History  of  the  EPP  Section  Voluntary  Guidance       In  January  2005,  the  Ethics  Committee  of  the  EPP  Section  began  to  consider  drafting  standards  for  Section  members  involved  in  public  policy  processes.  The  Model  Standards  of  Conduct  for  Mediators  were  and  still  are  the  pre-­‐eminent  set  of  standards  for  mediators.  However,  the  Model  Standards  do  not  fit  the  work  of  EPP  Section  members  very  well.  Section  members  sometimes  mediate,  but  they  do  more.  Also,  on  some  topics,  like  confidentiality,  the  Model  Standards  just  do  not  fit  the  open  world  of  public  policymaking.       Ethics  Committee  members,  with  encouragement  from  the  Section  leadership,  sought  standards  to  guide  neutrals  involved  in  processes  beyond  mediation.  These  would  be  useful  not  only  in  guiding  member’s  actions,  but  also  in  helping  to  explain  good  practice  to  clients,  employers,  and  the  public.      

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  The  ethics  committee  produced  a  draft  set  of  standards  for  “facilitators”  in  2005.  The  committee  vetted  this  set  among  section  members  and  received  strong  feedback  urging  reconciliation,  if  possible,  with  the  Model  Standards.         The  committee  re-­‐examined  the  Model  Standards  to  understand  which  sections  functioned  well  only  for  mediation  and  which  sections  could  apply  to  a  wider  class  of  consensus-­‐seeking  activities  led  by  a  neutral.  The  committee  came  to  call  this  leader  a  “non-­‐decision-­‐making  neutral”  (NDN)  to  distinguish  these  consensus-­‐based  activities  from  arbitration,  trials,  or  parliamentary  processes.           In  2007,  the  committee’s  chair  and  reporter  produced  an  “85%  consensus”  document  recording  how  the  committee  proposed  to  change  the  Model  Standards  for  Mediators  to  make  those  standards  apply  to  a  broader  class  of  processes.  Committee  members  shared  this  document  in  sessions  at  that  year’s  EPP  Section  conference  and  full  ACR  conference.  The  committee  collected  comments  and  turned  to  job  of  revision.       In  2009,  the  committee  presented  the  Section  Leadership  Council  with  a  new  draft  of  Model  Standards  for  Non-­‐Decision-­‐Making  Neutrals.  The  committee  also  made  the  draft  standards  available  through  the  web.         The  Leadership  Council  sent  the  draft  out  for  peer  review.  It  also  invited  comments  from  all  section  members  through  a  web  survey.         Based  on  that  feedback,  the  Leadership  Council  reached  some  important  conclusions  about  how  to  proceed  with  finalizing  the  working  document.  First,  the  Council  decided  the  Section  was  not  ready  to  adopt  an  enforceable  set  of  ethics  standards.  The  Section  did  not  have  the  capacity  to  do  enforcement,  and  there  was  no  clear  call  within  the  Section  for  enforceable  standards.  Second,  many  in  the  membership  were  interested  in  some  guidance  simpler  than  the  nearly  twenty  pages  of  standards  and  discussion  offered  by  the  committee.             The  Leadership  Council  directed  the  committee  to  produce  instead  a  set  of  voluntary  guidelines.  The  Section  will  not  directly  oversee  the  application  of  these  guidelines,  but  each  member  will  be  free  to  adopt  them.  Further,  the  Council  asked  the  committee  to  produce  the  guidelines  in  two  forms:  a  simple  form  suitable  for  quickly  conveying  the  essence  of  professional  conduct  to  clients  and  the  public,  and  a  detailed  form  containing  more  guidance  for  members.           Included  in  the  detailed  version  are  discussion  notes  from  the  Ethics  Committee.  These  notes  help  explain  the  guidelines  and  also  point  out  where  the  Model  Standards  of  Conduct  for  Mediators  do  not  fit  the  typical  practice  of  Section  members.      

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The  Guides  for  Good  Professional  Conduct       Although  this  document  offers  three  formal  ethical  guides  for  EPP  Section  members,  these  are  hardly  the  only  source  of  guidance  for  responsible  practices.    As  ethics  expert  Michael  Josephson  has  pointed  out,  professionals  should  consider  at  least  five  sources  of  requirements  that  shape  good  behavior.         The  first  source  is  laws.  Some  of  these  are  general  laws  that  apply  to  everyone.  For  example,  a  public  policy  professional  should  not  defraud  clients  or  employers.  Some  of  these  are  more  specific  to  the  profession:  a  public  policy  professional  should  abide  by  open  meeting  and  sunshine  laws.         The  second  source  is  formal  standards  of  professional  conduct.  These  include  the  principles  and  guidelines  offered  here.         The  third  source  is  informal  standards  of  conduct  based  on  core  values  of  the  profession.  For  example,  our  profession  is  committed  to  peaceful  resolution  of  differences.  A  member  who  employed  pistols  at  twenty  paces  as  a  policy  dispute  resolution  tool  would  be  considered  out  of  bounds.  The  guidance  in  this  document  embodies  many  of  the  Section’s  core  values,  such  as  self-­‐determination  and  professional  competence.  But  colleagues  may  expect  professionals  to  do  more—to  honor  all  the  values  of  the  profession,  even  if  those  values  are  not  set  down  in  writing.         The  fourth  source  is  standards  of  good  character.  Josephson  identifies  trustworthiness,  respect,  responsibility,  fairness,  caring,  and  citizenship  as  the  six  pillars  of  character.  These  are  not  unique  to  any  profession.  We  hope  to  find  them  in  all  good  people.         And  the  fifth  source  is  virtue.  This  term  encompasses  behavior  that  goes  beyond  the  minimum  standard.  For  Section  members,  examples  would  include  volunteering  to  serve  on  Section  committees  or  campaigning  to  improve  community  awareness  of  alternative  dispute  resolution.         The  larger  point  is,  to  understand  the  essence  of  professional  behavior,  do  not  stop  at  the  guidance  here;  look  beyond  it.    The  voluntary  guidelines  for  Section  members  discuss  many  tenets  that  Section  members  value:  self-­‐determination,  impartiality  and  avoiding  of  conflicts  of  interests;  confidentiality;  and  competence.  In  a  sense,  the  first  six  principles  in  the  guidelines  present  these  and  related  “core”  standards.  But  following  these  alone  won’t  assure  your  reputation  as  an  ethical  professional.  Keep  a  wider  perspective.  Try  to  honor  the  full  spectrum  of  norms—mandatory  and  voluntary,  formal  and  informal.      

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Note: The Leadership Council of the Environment and Public Policy (EPP) Section released this set of voluntary guidance for Section members in 2011. It includes definitions, principles, guidelines, and a discussion of the guidelines by the EPP Ethics Committee. The heart of the guidance is in the guidelines and discussion. The guidelines largely follow the organization of the Model Standards of Conduct for Mediators. Their content also reflects the Model Standards, with modifications to better fit the practice of EPP members. The discussion explains why modifications were necessary. The principles are short restatements of the guidelines. As such, they often repeat key phrases from the guidelines. Readers who wish a quick overview of the guidance can look at the first annex of this document, on page 24, which collects the ten principles on one page. Although the guidance is divided into ten parts, note that some themes like neutrality, candor, and trustworthiness underlie multiple principles.

Voluntary Ethics Guidance for EPP Section Members

Definitions & Construction  Readers should construe this guidance in its entirety. The order of principles does not indicate priority or relative importance. In this guidance, the following definitions apply: A process is a structured activity in which stakeholders jointly address an issue, problem, or dispute with the aim of building consensus and reaching a decision. It also includes structured activities where stakeholders build toward consensus and decision-making, such as consultations or mutual fact-finding or monitoring. Conveners (defined below) might hire Section members to help design or conduct a process. Convener means an individual, agency, organization, or other entity that brings persons together to address an issue, problem, or dispute—in other words, the convener initiates a process. This term also includes process sponsors (the entities paying a Section member to design or conduct a process) and referring courts. Participant means an individual (1) who is a decision-maker or a representative of a decision-maker and (2) who takes part in deliberations “at the table” in a process guided by a Section member.

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Comment: The term does not include the section member or any observers or advisors present, even if they have occasional opportunity to make comments or provide expertise. “At the table” includes physically meeting together or meeting by telephone, video, or other means. The convener may or may not be a participant.

Constituency means a group or entity represented by a participant.

Comment: Sometimes the guidelines refer to those with a direct voice in the substantive outcome of the process (the participants) and sometimes to a larger group involved in the process (the constituencies).

Others, when used in conjunction with participants, means anyone else besides the Section member “in the room” during deliberations and decision-making.

Comment: “Others” may include staff, experts, observers, and so forth. “In the room” means physically present or linked via telephone, video, or similar means. “Others” includes persons whether or not they have opportunity to make comments or provide input to the group.

Impartiality means freedom from favoritism, bias, or prejudice in word, action, or appearance. Self-determination means the ability to make free and informed choices about process and substance. The use of “shall” in a guideline indicates that a Section member abiding by these guidelines must follow the practice described. The use of “should” indicates that the practice is highly desirable, but not mandatory; however, departures require strong reasons and deliberate exercise of judgment and discretion.

Includes means “includes, but is not limited to.” The use of singular or plural nouns does not limit the scope of a principle or guideline. A principle or guideline discussing the obligations of a Section member applies equally to a team of Section members. A principle or guideline discussing a Section member’s obligations to the convener applies equally if there are multiple conveners. These principles and guidelines follow the organization, and often draw on the text, of the Model Standards of Conduct for Mediators. References in the Committee Discussion to the “Model Standards” are to the 2005 version of the Model Standards of Conduct for Mediators from the American Bar Association, American Arbitration Association, and Association for Conflict Resolution.

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Principle I. Self-Determination

In designing or conducting a process, a Section member shall strive to let people make their own, informed decisions. A member may encourage people to keep open minds and reconsider their positions, but a member shall not undermine self-determination to achieve consensus or settlement, to satisfy egos, to justify increased fees, or to respond to outside pressures.

GUIDELINES A. When designing a process or conducting it as a neutral, a Section member shall

honor the principle of participant and constituency self-determination. 1. Although participant and constituency self-determination for process design is

a fundamental principle of dispute prevention and resolution practices, a Section member’s ability to ensure self-determination varies with the nature of the process. A Section member may need to balance such participant and constituency self-determination with the member’s duty to conduct a quality process in accordance with these Principles and Guidelines.

2. A Section member cannot personally ensure that each participant and

constituency has made free and informed choices to reach particular decisions, but, where appropriate, a Section member should make the participants and constituencies aware of the importance of consulting other sources and qualified advisors to help them make informed choices.

B. A Section member shall not undermine participant or constituency self-

determination to achieve consensus or settlement, to satisfy egos, to justify increased fees, or to respond to outside pressures.

EPP Ethics Committee Discussion: Applying the principle of self-determination can be difficult in the public policy arena. Government agencies may participate under order of higher authority. Participants and constituencies may have little choice regarding selection of the neutral; a Section member may be hired to begin conflict assessment or advise on process design before anyone other than the convener is aware a process is being planned. Although circumstances may constrain the participants’ ability to make their own choices in the above matters, a Section member should not further constrain them, even in matters such as initial selection, approval, or rejection of the neutral.

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A Section member should consider a variety of ways for participants to become informed. The ideal, though not always practical, is a level information playing field. Other groups have addressed the problem of creating an “informed process,” and members may find some guidance in those discussions. For example, the Council on Environmental Quality’s Basic Principles for Agency Engagement suggest seeking agreement on how to share, test, and apply information, while ensuring information is accessible and understandable. The International Association for Public Participation’s code of ethics commits members to encouraging public disclosure of relevant information. The Ethical Standards for Professional Responsibility from the Society of Professionals in Dispute Resolution, one of ACR predecessor organizations, emphasized the special importance of participants understanding the consequences of proposed settlements. To that end, the Ethical Standards directed members to consider educating the parties, referring them to experts, or withdrawing if the lack of knowledge impugned the integrity of the process. Pressures to bring a process to resolution may come from internal sources, such as the Section member’s desire to have a “successful” track record, or from external sources, such as conveners, administrators, or government officials. The Section member should not succumb to these pressures at the expense of participant or constituency self-determination.

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Principle II. Impartiality

When acting as a neutral, a Section member shall be impartial and shall avoid conduct that gives the appearance of partiality. If a member is engaged to act as a neutral and later finds that he or she cannot be impartial, the member shall withdraw from the work.

GUIDELINES A. When called upon to act as a neutral, a Section member shall decline to design or

conduct a process if the Section member cannot do so it in an impartial manner. B. When acting as a neutral, a Section member shall design and conduct processes in

an impartial manner and avoid conduct that gives the appearance of partiality.

1. A Section member shall not act with partiality or prejudice based on personal characteristics, background, values and beliefs, performance at a process, or any other reason.

2. A Section member shall neither give nor accept a gift, favor, loan, or other

item of value that raises a question as to the member’s actual or perceived

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impartiality. A Section member may accept or give de minimus gifts or incidental services to assist with a process or respect cultural norms so long as such practices would not cause a reasonable observer to question the member’s impartiality.

C. When acting as a neutral, if at any time the Section member is unable to conduct a

process in an impartial manner, the member shall withdraw from the process.

EPP Ethics Committee Discussion: Maintaining impartiality and avoiding the appearance of partiality may present particular challenges in a public policy process. For example, payment for the Section member’s services often comes from a single source, and sometimes repeatedly from the same source. The member’s loyalty must always be to the process, without regard to the source of payment. [The best practice for the source or sponsor is to support the independence of the neutral. For more on this point, see the SPIDR document, Best Practices for Government Agencies: Guidelines for Using Collaborative Agreement-Seeking Processes (1997). SPIDR was one of the predecessor organizations that merged to create ACR.]

Impartiality is a key factor marking a Section member serving as a neutral. A convener might hire anyone to conduct a meeting, but when the convener hires a Section member explicitly to serve as a neutral, the member must remain impartial and place loyalty to the process over loyalty to the convener. Public policy processes are often lengthy, offering opportunities to form social ties. Often too, the neutral’s experience in a particular area may create personal or professional relationships. These could lead to bias or the appearance of partiality. An objection of partiality from a single participant or other person does not always indicate a violation of this principle or its guidelines. The issue is what a reasonable person would consider likely to create bias in the particular context. If a serious objection is raised, a Section member should discuss it with the convener and participants.

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Principle III: Conflicts of Interest

When designing or conducting a process, a Section member shall avoid conflicts of interest or the appearance of a conflict of interest. Members who know of conflicts or apparent conflicts shall disclose them to clients and participants and shall withdraw from the work if a serious and reasonable objection is raised.

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GUIDELINES A. When  acting  as  a  neutral,  a  Section  member  shall  avoid  a  conflict  of  interest  

or  the  appearance  of  a  conflict  of  interest  during  (that  is,  in  the  design  and  conduct)  and  after  a  process.  A  conflict  of  interest  can  arise  from  involvement  by  a  member  with  the  subject  matter  of  the  dispute  or  from  any  relationship  between  a  member  and  any  person  whether  past  or  present,  personal  or  professional,  that  reasonably  raises  a  question  of  a  member’s  impartiality.  

 B. When  acting  as  a  neutral,  a  Section  member  shall  make  a  reasonable  inquiry  

to  determine  whether  there  are  any  facts  that  a  reasonable  individual  would  consider  likely  to  create  a  potential  or  actual  conflict  of  interest  for  the  member.    

C. When  acting  as  a  neutral,  a  Section  member  shall  disclose,  as  soon  as  practicable,  all  actual  and  potential  conflicts  of  interest  that  are  reasonably  known  to  the  member  and  could  reasonably  be  seen  as  raising  a  question  about  the  member’s  impartiality.    

D. When  acting  as  a  neutral,  if  a  Section  member  learns  any  fact  after  accepting  

a  process  that  raises  a  question  with  respect  to  that  member’s  service  creating  a  potential  or  actual  conflict  of  interest,  the  member  shall  disclose  it  as  soon  as  practicable.  

E. When  acting  as  a  neutral,  if  a  Section  member’s  conflict  of  interest  might  

reasonably  be  viewed  as  undermining  the  integrity  of  the  process,  the  member  shall  withdraw  from  or  decline  to  proceed  with  the  process  regardless  of  the  expressed  desire  or  agreement  of  the  convener,  participants,  or  constituencies  to  the  contrary.    

F. Subsequent  to  a  process  where  a  Section  member  has  acted  as  a  neutral,  the  

member  shall  not  establish  any  other  relationship  in  a  manner  that  would  raise  questions  about  the  integrity  of  the  process  or  create  a  perceived  or  actual  conflict  of  interest.  When  a  member  develops  personal  or  professional  relationships  with  anyone  following  a  process  in  which  they  were  involved,  the  member  should  consider  factors  such  as  time  elapsed  following  the  process,  the  nature  of  the  relationships  established,  and  services  offered  when  determining  whether  the  relationships  might  create  a  perceived  or  actual  conflict  of  interest.    

EPP Ethics Committee Discussion: ACR’s Ethical Principles, which apply to all ACR members, state that, “A Neutral must decline all cases where there is a conflict of interest or where there is the appearance of an impropriety.”

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The committee believes that a single allegation of conflict of interest does not necessarily disqualify a Section member. The test to apply is in III(E): whether the Section member’s interest could be reasonably viewed as undermining the integrity of the process. If, for example, a Section member’s interest could lead the member to skew the outcome of the process or to limit the full participation of some because they had opposing interests, that would undermine the integrity of the process. In the public policy arena because the issues are public, they affect the Section member as a member of the public. Ordinarily the Section member’s status as a citizen is not enough to constitute a conflict of interest. To be considered the source of a conflict, the outcome must affect the member on a significant personal or financial level. For example, past electoral support for or opposition to an official involved in the conflict would not be a conflict of interest unless the support or opposition was notably strong or public. Public policy can be a “small world,” and Section members often are asked to conduct processes involving people they know. The convener may have hired the member before or even be the member’s employer. The member may have social ties to people who work for the convener, the participants, or the constituencies. These relationships should be disclosed, but they do not necessarily give rise to an incurable conflict. Whether they create an actual conflict and whether the conflict can be cured through disclosure depends on the nature of the relationship and sometimes the nature of the policy issue. This “small world” concern applies equally to relationships formed after a process closes. It may be acceptable to form professional or social relationships with previous conveners, participants, and constituencies. It is unacceptable if the new relationships raise an appearance that the Section member may have had an interest in the outcome of a completed process. Unacceptable examples include taking a high-paying job with a convener, participant, or constituency soon after a process, or investing in a commercial development after a process resolved the terms for its zoning.

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Principle IV. Competence

A Section member shall take on work only when the member is competent to do the work.

GUIDLINES A. A Section member shall provide services only when the member has the

necessary competence to satisfy the reasonable expectations of the convener, participants, and constituencies.

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1. When designing or conducting a process, a Section member shall either

have or promptly acquire enough familiarity with the subject matter to do so effectively.

2. Training, experience in the process, skills, cultural understandings, and

other qualities are often necessary for competence in designing or conducting a process. A Section member who offers to design or conduct a process creates the expectation that the person is competent to perform effectively.

3. A Section member who is active in process design and conduct shall,

through educational programs or other means, maintain and enhance the member’s knowledge and skills in the processes for which the member provides services.

4. A Section member shall make available, upon request, information

relevant to the member’s training, education, experience, and approach to designing and conducting the process for which the member was retained.

B. If a Section member, engaged in providing services, cannot provide the services

competently, the member shall discuss the situation with the participants and, if appropriate, the convener as soon as possible and take appropriate steps such as withdrawing or requesting assistance.

C. If a Section member’s ability to provide services is impaired by drugs, alcohol,

medication, or otherwise, the member shall not serve. EPP Ethics Committee Discussion: In public policy processes it is important for the Section member to have some knowledge of the underlying subject matter, at least enough to listen and intervene intelligently about the topic. If the member does not have this knowledge initially, the member must acquire it early in the process. There are many ways a Section member may acquire this knowledge. Most commonly, the member will talk to the convener, participants, and constituencies to identify key issues, jargon, acronyms, processes, or context likely to come up in the process. Further, in public policy processes, it may be acceptable to expand the process team to include people with complementary knowledge or experience. For example, a Section member with experience in land use planning might partner with a person with public health knowledge to co-facilitate a case on redevelopment of a brownfield. Finally, a Section member might engage a subject matter expert as an advisor. However, the member should take care not to let the expert advisor bias the member in the conduct of the process. Often the full scope and subject matter of a process are unclear at the outset, and sometimes the role of the Section member changes during the process. If changes in

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scope or role require additional skills or knowledge, the Section member must respond to this challenge. In deciding whether to continue where concerns about competency are raised, the Section member should consider whether the concerns have objective merit. If the answer is yes, the member must address the concerns by adding competence or withdrawing. Even if the concerns have no merit, if the member can serve the process better by withdrawing than by staying, the member should put the process ahead of pride and professional interest. Guideline IV(A)(4) requires Section members to respond promptly, fully, and candidly to inquiries about training and experience. The guideline does not require the member to initiate disclosure.

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Principle V. Confidentiality

When designing or conducting a process, a Section member shall encourage clients and participants to come to an early understanding about confidentiality. A member shall abide by those understandings as well as any laws regarding access to information or keeping of confidences.

GUIDELINES A. Early in a process, before substantive discussions begin, a Section member shall

promote understanding among the convener, participants, and others regarding confidentiality.

B. A Section member shall abide by confidentiality and openness laws and related

legal requirements. A Section member shall abide by the ground rules and agreements adopted with the convener and participants on these matters, unless the member has obtained specific permission of the convener and participants to deviate from the ground rules or agreements.

C. If a Section member participates in peer consultation, teaching, evaluation, or

research, the member should protect and abide by the convener, participants, and constituencies’ reasonable expectations regarding anonymity and confidentiality.

EPP Ethics Committee Discussion: A public policy process may be almost entirely public, by law. Many times, keeping group discussions confidential is simply not an option. In order to encompass a broad range of processes, Principle V and its guidelines differ significantly from Model Standard V on confidentiality.

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The Section member must have a grasp of confidentiality in the context of sunshine law and openness requirements. The member needs to know enough to operate day-to-day, to explain the basics to others, and to recognize when a situation calls for expert advice. The convener, participants, and others must come to understand any external rules governing confidentiality. The Section member must promote awareness and understanding of the consequences of any external rules before addressing substantive matters. Sunshine or other laws may set the basic rules for confidentiality of meetings, but to those matters left to conveners or participants, such as private discussions with the Section member, disclosures by the member to the convener, attributions in any reports of the meeting prepared by the member, or public statements made outside the process, the conveners or participants may want to adopt additional understandings. ACR’s Ethical Principles, applicable to all ACR members, state that, “An ACR conflict resolution process should emphasize … keeping all information shared in the process private unless such privilege is waived by all participants.” The words “should emphasize” give this principle flexibility. It can bend to accommodate sunshine laws, open meetings, and other constraints on public processes. However, it implies a general duty to be discreet. When in doubt, a Section member should treat matters as confidential. For example, a member may consult a colleague privately for advice; the colleague giving advice should treat the matter as confidential unless some other understanding is reached.

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Principle VI. Quality Of The Process

When designing or conducting a process, a Section member shall be diligent and attentive to the task; shall encourage broad representation of stakeholders; shall promote the safety, engagement, and competency of the participants; and shall promote mutual respect among all participants.

GUIDELINES A. When design or conducting a process, a Section member shall act in accordance

with these Principles and Guidelines and in a manner that promotes diligence, timeliness, safety, presence of the appropriate participants and others, participant engagement, procedural fairness, participant competency, and mutual respect among all. 1. A Section member shall agree to serve only when the member is prepared

to commit the attention essential to an effective process.

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2. A Section member shall only accept cases when the member can satisfy the reasonable expectation of the convener and participants concerning the timing of a process.

3. A Section member should promote honesty and candor between and

among all involved, and a member shall not knowingly misrepresent a material fact or circumstance in the course of a process.

4. A Section member shall ensure that the purpose, limitations, duties, and

costs of the participants and others in the process are stated clearly so that they do not have unrealistic expectations of their role or impact.

5. The role of a neutral designing or conducting a process differs

substantially from other professional roles. Mixing the role of a neutral with another role can confuse those interested or involved in the process, and thus, a Section member taking on multiple roles should distinguish between them. A Section member may provide information to the participants that the member is qualified by training or experience to provide, only if the member can do so consistent with these Principles and Guidelines.

6. A Section member designing or conducting a process as a non-decision-

making neutral shall not undertake substantive decision-making roles in the same matter without the consent of the participants. Before providing such service, Section member shall inform the participants of the implications of the difference in process under the two roles. A Section member who undertakes a decision-making role assumes different duties and responsibilities that may be governed by other guidelines or standards.

7. A Section member shall not mischaracterize a process to avoid legal

constraints or claim undeserved legal protections.

8. If a process is being used to further criminal conduct, a Section member shall take appropriate steps including, if necessary, postponing, withdrawing from, or terminating the process.

9. If a participant has difficulty actively participating in a process, a Section

member conducting the process shall explore how to improve the participant’s capacity to participate, comprehend, and exercise self-determination.

B. If Section member learns of behavior that jeopardizes conducting a process

consistent with these Principles and Guidelines, the member shall take appropriate steps, including, if necessary, postponing, withdrawing from, or terminating the process.

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EPP Ethics Committee Discussion: To cover a broader set of processes and address Quality of Process in the public policy context, this Principle and its guidelines differ significantly from the Model Standard on Quality of the Process. Guideline VI(A)(1), requiring attention to the process, is worthy of a mandatory “shall” rather than an advisory “should” as in the Model Standards. Guideline VI(A)(2), concerning meeting timing expectations, is really a part of the requirement in VI(A)(1), and also deserves to be mandatory. Model Standard VI(A)(3) states—

The presence or absence of persons at a mediation depends on the agreement of the parties and the mediator. The parties and mediator may agree that others may be excluded from particular sessions or from all sessions.

In many public processes, participants may have no control over who sits at the table. If sunshine laws apply, they also may not be able to exclude observers. The committee has omitted language equivalent to Model Standard VI(A)(3). The committee omitted Model Standard VI(A)(7), regarding recommending arbitration or other neutral processes. The committee determined it does not need to be an ethical standard. The committee agrees, though, that when appropriate, a Section member may recommend that parties consider resolving their dispute through other processes. Guideline VI(A)(5) touches on a potentially difficult area. ACR Ethical Principles, applicable to all ACR members, state that, “A Neutral must promote informed decision making among the participants in the process, without offering legal, psychological or any other advice associated with the Neutral’s background and training.” This principle might be read to prevent a Section member from taking on multiple roles. Indeed, some committee members believe that the best practice is for a neutral never to take on additional roles. However, Guideline VI(A)(5) reflects that it is sometimes possible for a member to manage multiple roles and maintain neutrality. To be consistent with the ACR Principles, a member acting as a neutral should never offer substantive advice to participants, however the member may offer information, not tailored to the interests of a particular participant or stakeholder, if it can be done without compromising the member’s neutrality or the integrity of the process. Model Standard VI(A)(8) is the basis for Guideline VI(A)(6). The revisions here to Model Standard VI(A)(8) restrict it to the situation where the neutral takes on a decision-making role. Although Guideline VI(A)(6) specifically mentions informing only participants, there is no bar on providing information to the conveners, constituencies, or others. Guideline VI(A)(9), which is based on Model Standard VI(A)(10), raises some complex issues in public policy situations. The duty in Guideline VI(A)(9) extends only to those actively participating in the process, not to those who have an interest but who

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choose to participate through a representative or fail to participate at all. However it is not meant to bar contacting the constituency of a participant. Guideline VI(B) combines Model Standard VI(B), which requires a response to signs of domestic abuse or violence, and Model Standard VI(C), which requires responses to other conduct that jeopardizes the quality of the process. The resulting guideline applies to a broad set of circumstances; it requires a Section member to respond appropriately to domestic abuse and violence, as well as to other disruptive behaviors more likely to be encountered in public policy processes. If the conduct of any person is harming the integrity of the process, the Section member should take appropriate steps to restore productivity. In a public policy process, this may mean discussing the behavior with the convener and participants.

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Principle VII. Advertising and Solicitation

When seeking work, a Section member shall be open and honest about qualifications, experience, services, and fees. A member shall not promise consensus or otherwise imply that the member will conduct a process in violation of these principles. In communicating with potential clients and participants, a member shall respect past clients’ and participants’ reasonable expectations regarding anonymity and confidentiality.

GUIDELINES A. A Section member shall be truthful and not misleading when advertising,

soliciting, or otherwise communicating the member’s qualifications, experience, services, and fees.

1. A Section member shall not include any promises as to process outcome in

communications, including business cards, stationery, or those that are computer-based.

2. A Section member shall not claim to meet the professional qualifications

of a governmental entity or private organization unless that entity or organization has a recognized procedure for qualification and grants such status to the member.

3. A Section member shall not claim a qualification that the member does not

have. A Section member shall not represent that competence in one process assures competence in a process requiring different skills.

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B. A Section member shall not advertise or solicit in a manner that undermines the

integrity of any of the processes for which the member is advertising. C. In advertising and promotional materials, a Section member shall protect and

abide by conveners and participants’ reasonable expectations regarding anonymity and confidentiality.

EPP Ethics Committee Discussion: Note that the Model Standards VII(A)(1) and (2) use “should”. Guidelines VII(A)(1) and (2) use “shall”. Under Guideline VII(A)(2), it is reasonable for a Section member to list professional memberships. However, the member should not suggest that membership in an organization or listing on an agency roster of neutrals is the same as holding a license or certification. This guideline prohibits Section members from making claims of certification when the only fair claim is membership or listing. Beyond claiming membership, a member may promise in advertising to abide by a group’s ethical guidelines or standards, whether or not they are enforced. Guideline VII(A)(3) recognizes that a Section member who is qualified in one process may not be qualified in others. Competence as a mediator, for example, does not necessarily make one competent as a public policy facilitator, and vice versa. Similar statements can be framed involving those with qualifications for the bench or bar. Guideline VII(A)(3) will not stop a retired judge from including judicial experience in advertising herself as process designer and facilitator. However, the judge should not suggest that experience as a judge qualifies her in those fields. In general under Guideline VII(A), a Section member who highlights past work should be careful not to mislead potential clients concerning the magnitude of the member’s contribution or involvement.

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Principle VIII. Fees and Other Professional Charges

When conducting a process, a Section member shall be reasonably candid about who is paying for the member’s services and related expenses. Early in the process, the member shall make participants aware of any fees they may owe.

GUIDELINES A. When conducting a process, a Section member shall make available information

regarding who is paying for the member’s services. When requested by any

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participant or constituency a Section member shall provide specifics about the member’s fees and other charges related to the process.

1. If a Section member charges fees, the member should develop them in

light of all relevant factors, including the type and complexity of the matter, the qualifications of the member, the time required, and the rates customary for such services.

2. If a Section member charges fees, a member’s fee arrangement should be

in writing. B. A Section member shall not charge fees in a manner that impairs the member’s

impartiality.

1. A Section member shall not enter into a fee agreement that is contingent upon the result of the process.

2. While a Section member may accept unequal fee payments, the member

shall not allow such a fee arrangement to adversely impact the member’s ability to conduct a process in an impartial, efficient, and competent manner.

C. If a Section member volunteers services or reduces fees in the public interest, the

member shall not allow that difference in compensation to affect the quality of the process.

EPP Section Ethics Committee discussion: If not disclosed, fees and expenses can become a source of distrust, disagreement, disappointment, and conflict. To avoid surprises and misunderstandings that might damage the process, the participants should know early on who is paying. The Section member can tell them directly, or someone else can brief them. The requirement to disclose to participants and constituencies does not prohibit disclosure to others. Sometimes a salaried employee’s duties include conducting a process, and the employee earns no special compensation for that service. In those situations, the Section member should disclose the name of the employer and may refer people with questions about fees to the employer. Contingent fee agreements pave the way for conflicts of interest and corrode impartiality. The committee has made avoiding them an absolute requirement, unlike the Model Standard VIII(B)(1). Guideline VIII(B)(2) deletes the words “from the parties” from the Model Standard language. In public policy processes there is often a single payer, which is often the convener. Unequal fee arrangements do not automatically create bias and are acceptable if they do not harm the Section member’s credibility and effectiveness. The

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Section member should be sure that the conveners and the participants understand that regardless of who is paying, the member works on behalf of all participants.

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Principle IX. Advancement of the Practice

Section members shall advance the profession by supporting diversity, access to dispute resolution services, research, education, and mentoring.

GUIDELINES A. A Section member should act in a manner that advances the practice of dispute

prevention and resolution. A Section member promotes this Principle by engaging in some or all of the following:

1. Fostering diversity in the profession of dispute prevention and resolution. 2. Striving to make dispute prevention and resolution services accessible to

those who elect to use them, including providing services at a reduced rate or on a pro bono basis as appropriate.

3. When given the opportunity, participating in research, evaluation, and

feedback. 4. Participating in outreach and education efforts to assist the public in

developing an improved understanding of, and appreciation for, dispute prevention and resolution.

5. Assisting newer professionals through training, mentoring, and

networking. B. A Section member should demonstrate respect for differing points of view within

the profession of dispute prevention and resolution, seek to learn from others, and work together with others to improve the profession and better serve people in need of the member’s services.

EPP Section Ethics Committee discussion: The committee encourages Section members to see their profession as embracing not just process activities but also larger endeavors that include training, research, and public education. Guideline IX(A)(2) encourages Section members to provide services at a reduced rate or on a pro bono basis. Members who regularly undertake this kind of work should offer these services to a variety of groups, to avoid creating an appearance of bias.

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Principle X. Maintaining the Integrity of the Profession

When designing or conducting a process, a Section member shall place the integrity of the process above personal interest and the interests of the client. In all professional endeavors, a member shall act in ways that demonstrate honesty, trustworthiness, and fitness to serve.

GUIDELINES A. In designing or conducting a process, a Section member shall place the interests

of the process and all associated with it above personal interest.

1. A Section member shall place the interests of the process above the interests of a convener.

2. A Section member shall not prolong a process or otherwise compromise

its quality for personal gain. 3. A Section member shall not voluntarily withdraw from an ongoing,

constructive process in a way that unreasonably disrupts the process.

B. A Section member shall not engage in conduct that reflects adversely upon honesty, trustworthiness, or fitness to serve as a neutral.

1. A Section member shall not knowingly lie, conceal a fact, or exploit a

misunderstanding to get a membership, license, or similar professional benefit.

2. If a Section member acquires confidential information while serving as a

neutral, the member shall not use the information to gain advantage over others.

C. A Section member shall not knowingly assist another to violate these Principles or

Guidelines.

EPP Section Ethics Committee discussion: This Principle and its guidelines have no clear antecedent in the Model Standards. The committee believes that the points here are part of professional conduct.

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In Guideline X(A)(3) whether a disruption is unreasonable depends both on the circumstances prompting the withdrawal and the nature of the disruption. Note the use of “constructive” as a qualifier in this guideline. If a process is being manipulated or otherwise warped to the point of not promoting decision-making, this guideline does not prevent a member from withdrawing. In fact, withdrawal may then be the proper thing to do. Guideline X(B)(2) is about not taking advantage of “inside information.” Guideline V, Confidentiality, limits what a neutral can disclose. This guideline limits how a neutral can act.

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Annex I: Summary of Ethical Principles for EPP Section Members

1. Self-Determination: In designing or conducting a process, a Section member shall strive to let people make their own, informed decisions. A member may encourage people to keep open minds and reconsider their positions, but a member shall not undermine self-determination to achieve consensus or settlement, to satisfy egos, to justify increased fees, or to respond to outside pressures. 2. Impartiality: When acting as a neutral, a Section member shall be impartial and shall avoid conduct that gives the appearance of partiality. If a member is engaged to act as a neutral and later finds that he or she cannot be impartial, the member shall withdraw from the work. 3. Conflicts of Interest: When designing or conducting a process, a Section member shall avoid conflicts of interest or the appearance of a conflict of interest. Members who know of conflicts or apparent conflicts shall disclose them to clients and participants and shall withdraw from the work if a serious and reasonable objection is raised. 4. Competence: A Section member shall take on work only when the member is competent to do the work. 5. Confidentiality: When designing or conducting a process, a Section member shall encourage clients and participants to come to an early understanding about confidentiality. A member shall abide by those understandings as well as any laws regarding access to information or keeping of confidences. 6. Quality of the Process: When designing or conducting a process, a Section member shall be diligent and attentive to the task; shall encourage broad representation of stakeholders; shall promote the safety, engagement, and competency of the participants; and shall promote mutual respect among all participants. 7. Advertising and Solicitation: When seeking work, a Section member shall be open and honest about qualifications, experience, services, and fees. A member shall not promise consensus or otherwise imply that the member will conduct a process in violation of these principles. In communicating with potential clients and participants, a member shall respect past clients’ and participants’ reasonable expectations regarding anonymity and confidentiality. 8. Fees and Other Professional Charges: When conducting a process, a Section member shall be reasonably candid about who is paying for the member’s services and related expenses. Early in the process, the member shall make participants aware of any fees they may owe. 9. Advancement of the Practice: Section members shall advance the profession by supporting diversity, access to dispute resolution services, research, education, and mentoring. 10. Maintaining the Integrity of the Profession: When designing or conducting a process, a Section member shall place the integrity of the process above personal interest and the interests of the client. In all professional endeavors, a member shall act in ways that demonstrate honesty, trustworthiness, and fitness to serve.

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Note:  ACR,  the  American  Bar  Association,  and  the  American  Arbitration  Association  drafted  the  standards  reprinted  below.  The  ACR  Board  adopted  them  in  2005.  They  apply  to  all  ACR  members  when  acting  as  mediators.        

Annex II: Model Standards of Conduct for Mediators  Model Standard I: Self-Determination  A.          A  mediator  shall  conduct  a  mediation  based  on  the  principle  of  party  self-­‐determination.    Self-­‐determination  is  the  act  of  coming  to  a  voluntary,  uncoerced  decision  in  which  each  party  makes  free  and  informed  choices  as  to  process  and  outcome.    Parties  may  exercise  self-­‐determination  at  any  stage  of  a  mediation,  including  mediator  selection,  process  design,  participation  in  or  withdrawal  from  the  process,  and  outcomes.    

1.          Although  party  self-­‐determination  for  process  design  is  a  fundamental  principle  of  mediation  practice,  a  mediator  may  need  to  balance  such  party  self-­‐determination  with  a  mediator’s  duty  to  conduct  a  quality  process  in  accordance  with  these  Standards.    

 2.          A  mediator  cannot  personally  ensure  that  each  party  has  made  free  and  informed  choices  to  reach  particular  decisions,  but,  where  appropriate,  a  mediator  should  make  the  parties  aware  of  the  importance  of  consulting  other  professionals  to  help  them  make  informed  choices.  

 B.          A  mediator  shall  not  undermine  party  self-­‐determination  by  any  party  for  reasons  such  as  higher  settlement  rates,  egos,  increased  fees,  or  outside  pressures  from  court  personnel,  program  administrators,  provider  organizations,  the  media  or  others.      Model Standard II: Impartiality  A.   A  mediator  shall  decline  a  mediation  if  the  mediator  cannot  conduct  it  in  an  impartial  manner.    Impartiality  means  freedom  from  favoritism,  bias  or  prejudice.      B.   A  mediator  shall  conduct  a  mediation  in  an  impartial  manner  and  avoid  conduct  that  gives  the  appearance  of  partiality.        

1.   A  mediator  should  not  act  with  partiality  or  prejudice  based  on  any  participant’s  personal  characteristics,  background,  values  and  beliefs,  or  performance  at  a  mediation,  or  any  other  reason.      

 2.   A  mediator  should  neither  give  nor  accept  a  gift,  favor,  loan  or  other  item  of  value  that  raises  a  question  as  to  the  mediator’s  actual  or  perceived  impartiality.  

 

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3.            A  mediator  may  accept  or  give  de  minimis  gifts  or  incidental  items  or  services  that  are  provided  to  facilitate  a  mediation  or  respect  cultural  norms  so  long  as  such  practices  do  not  raise  questions  as  to  a  mediator’s  actual  or  perceived  impartiality.      

 C.            If  at  any  time  a  mediator  is  unable  to  conduct  a  mediation  in  an  impartial  manner,  the  mediator  shall  withdraw.    Model Standard III: Conflicts of Interest  A.          A  mediator  shall  avoid  a  conflict  of  interest  or  the  appearance  of  a  conflict  of  interest  during  and  after  a  mediation.    A  conflict  of  interest  can  arise  from  involvement  by  a  mediator  with  the  subject  matter  of  the  dispute  or  from  any  relationship  between  a  mediator  and  any  mediation  participant,  whether  past  or  present,  personal  or  professional,  that  reasonably  raises  a  question  of  a  mediator’s  impartiality.      B.          A  mediator  shall  make  a  reasonable  inquiry  to  determine  whether  there  are  any  facts  that  a  reasonable  individual  would  consider  likely  to  create  a  potential  or  actual  conflict  of  interest  for  a  mediator.    A  mediator’s  actions  necessary  to  accomplish  a  reasonable  inquiry  into  potential  conflicts  of  interest  may  vary  based  on  practice  context.    C.          A  mediator  shall  disclose,  as  soon  as  practicable,  all  actual  and  potential  conflicts  of  interest  that  are  reasonably  known  to  the  mediator  and  could  reasonably  be  seen  as  raising  a  question  about  the  mediator’s  impartiality.    After  disclosure,  if  all  parties  agree,  the  mediator  may  proceed  with  the  mediation.        D.          If  a  mediator  learns  any  fact  after  accepting  a  mediation  that  raises  a  question  with  respect  to  that  mediator’s  service  creating  a  potential  or  actual  conflict  of  interest,  the  mediator  shall  disclose  it  as  quickly  as  practicable.    After  disclosure,  if  all  parties  agree,  the  mediator  may  proceed  with  the  mediation.        E.          If  a  mediator’s  conflict  of  interest  might  reasonably  be  viewed  as  undermining  the  integrity  of  the  mediation,  a  mediator  shall  withdraw  from  or  decline  to  proceed  with  the  mediation  regardless  of  the  expressed  desire  or  agreement  of  the  parties  to  the  contrary.        F.          Subsequent  to  a  mediation,  a  mediator  shall  not  establish  another  relationship  with  any  of  the  participants  in  any  matter  that  would  raise  questions  about  the  integrity  of  the  mediation.    When  a  mediator  develops  personal  or  professional  relationships  with  parties,  other  individuals  or  organizations  following  a  mediation  in  which  they  were  involved,  the  mediator  should  consider  factors  such  as  time  elapsed  following  the  mediation,  the  nature  of  the  relationships  established,  and  services  offered  when  determining  whether  the  relationships  might  create  a  perceived  or  actual  conflict  of  interest.  

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   Model Standard IV: Competence  A.          A  mediator  shall  mediate  only  when  the  mediator  has  the  necessary  competence  to  satisfy  the  reasonable  expectations  of  the  parties.  

1.          Any  person  may  be  selected  as  a  mediator,  provided  that  the  parties  are  satisfied  with  the  mediator’s  competence  and  qualifications.    Training,  experience  in  mediation,  skills,  cultural  understandings  and  other  qualities  are  often  necessary  for  mediator  competence.    A  person  who  offers  to  serve  as  a  mediator  creates  the  expectation  that  the  person  is  competent  to  mediate  effectively.      

 2.          A  mediator  should  attend  educational  programs  and  related  activities  to  maintain  and  enhance  the  mediator’s  knowledge  and  skills  related  to  mediation.      

 3.          A  mediator  should  have  available  for  the  parties’  information  relevant  to  the  mediator’s  training,  education,  experience  and  approach  to  conducting  a  mediation.  

 B.          If  a  mediator,  during  the  course  of  a  mediation  determines  that  the  mediator  cannot  conduct  the  mediation  competently,  the  mediator  shall  discuss  that  determination  with  the  parties  as  soon  as  is  practicable  and  take  appropriate  steps  to  address  the  situation,  including,  but  not  limited  to,  withdrawing  or  requesting  appropriate  assistance.        C.          If  a  mediator’s  ability  to  conduct  a  mediation  is  impaired  by  drugs,  alcohol,  medication  or  otherwise,  the  mediator  shall  not  conduct  the  mediation.        Model Standard V: Confidentiality  A.          A  mediator  shall  maintain  the  confidentiality  of  all  information  obtained  by  the  mediator  in  mediation,  unless  otherwise  agreed  to  by  the  parties  or  required  by  applicable  law.  

1.          If  the  parties  to  a  mediation  agree  that  the  mediator  may  disclose  information  obtained  during  the  mediation,  the  mediator  may  do  so.    

 2.          A  mediator  should  not  communicate  to  any  non-­‐participant  information  about  how  the  parties  acted  in  the  mediation.    A  mediator  may  report,  if  required,  whether  parties  appeared  at  a  scheduled  mediation  and  whether  or  not  the  parties  reached  a  resolution.  

 

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3.          If  a  mediator  participates  in  teaching,  research  or  evaluation  of  mediation,  the  mediator  should  protect  the  anonymity  of  the  parties  and  abide  by  their  reasonable  expectations  regarding  confidentiality.      

 B.          A  mediator  who  meets  with  any  persons  in  private  session  during  a  mediation  shall  not  convey  directly  or  indirectly  to  any  other  person,  any  information  that  was  obtained  during  that  private  session  without  the  consent  of  the  disclosing  person.    C.          A  mediator  shall  promote  understanding  among  the  parties  of  the  extent  to  which  the  parties  will  maintain  confidentiality  of  information  they  obtain  in  a  mediation.    D.          Depending  on  the  circumstance  of  a  mediation,  the  parties  may  have  varying  expectations  regarding  confidentiality  that  a  mediator  should  address.    The  parties  may  make  their  own  rules  with  respect  to  confidentiality,  or  the  accepted  practice  of  an  individual  mediator  or  institution  may  dictate  a  particular  set  of  expectations.          Model Standard VI: Quality of the Process  A.          A  mediator  shall  conduct  a  mediation  in  accordance  with  these  Standards  and  in  a  manner  that  promotes  diligence,  timeliness,  safety,  presence  of  the  appropriate  participants,  party  participation,  procedural  fairness,  party  competency  and  mutual  respect  among  all  participants.  

1.          A  mediator  should  agree  to  mediate  only  when  the  mediator  is  prepared  to  commit  the  attention  essential  to  an  effective  mediation.  

 2.          A  mediator  should  only  accept  cases  when  the  mediator  can  satisfy  the  reasonable  expectation  of  the  parties  concerning  the  timing  of  a  mediation.  

 3.          The  presence  or  absence  of  persons  at  a  mediation  depends  on  the  agreement  of  the  parties  and  the  mediator.    The  parties  and  mediator  may  agree  that  others  may  be  excluded  from  particular  sessions  or  from  all  sessions.  

 4.          A  mediator  should  promote  honesty  and  candor  between  and  among  all  participants,  and  a  mediator  shall  not  knowingly  misrepresent  any  material  fact  or  circumstance  in  the  course  of  a  mediation.  

 5.          The  role  of  a  mediator  differs  substantially  from  other  professional  roles.    Mixing  the  role  of  a  mediator  and  the  role  of  another  profession  is  problematic  and  thus,  a  mediator  should  distinguish  between  the  roles.    A  mediator  may  provide  information  that  the  mediator  is  qualified  by  training  or  experience  to  provide,  only  if  the  mediator  can  do  so  consistent  with  these  Standards.  

 

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6.          A  mediator  shall  not  conduct  a  dispute  resolution  procedure  other  than  mediation  but  label  it  mediation  in  an  effort  to  gain  the  protection  of  rules,  statutes,  or  other  governing  authorities  pertaining  to  mediation.      

 7.          A  mediator  may  recommend,  when  appropriate,  that  parties  consider  resolving  their  dispute  through  arbitration,  counseling,  neutral  evaluation  or  other  processes.    

 8.          A  mediator  shall  not  undertake  an  additional  dispute  resolution  role  in  the  same  matter  without  the  consent  of  the  parties.    Before  providing  such  service,  a  mediator  shall  inform  the  parties  of  the  implications  of  the  change  in  process  and  obtain  their  consent  to  the  change.    A  mediator  who  undertakes  such  role  assumes  different  duties  and  responsibilities  that  may  be  governed  by  other  standards.      

 9.          If  a  mediation  is  being  used  to  further  criminal  conduct,  a  mediator  should  take  appropriate  steps  including,  if  necessary,  postponing,  withdrawing  from  or  terminating  the  mediation.      

 10.          If  a  party  appears  to  have  difficulty  comprehending  the  process,  issues,  or  settlement  options,  or  difficulty  participating  in  a  mediation,  the  mediator  should  explore  the  circumstances  and  potential  accommodations,  modifications  or  adjustments  that  would  make  possible  the  party’s  capacity  to  comprehend,  participate  and  exercise  self-­‐determination.  

 B.          If  a  mediator  is  made  aware  of  domestic  abuse  or  violence  among  the  parties,  the  mediator  shall  take  appropriate  steps  including,  if  necessary,  postponing,  withdrawing  from  or  terminating  the  mediation.      C.          If  a  mediator  believes  that  participant  conduct,  including  that  of  the  mediator,  jeopardizes  conducting  a  mediation  consistent  with  these  Standards,  a  mediator  shall  take  appropriate  steps  including,  if  necessary,  postponing,  withdrawing  from  or  terminating  the  mediation.      Model Standard VII: Advertising and Solicitation  A.          A  mediator  shall  be  truthful  and  not  misleading  when  advertising,  soliciting  or  otherwise  communicating  the  mediator’s  qualifications,  experience,  services  and  fees.  

1.          A  mediator  should  not  include  any  promises  as  to  outcome  in  communications,  including  business  cards,  stationery,  or  computer-­‐based  communications.      

 

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2.          A  mediator  should  only  claim  to  meet  the  mediator  qualifications  of  a  governmental  entity  or  private  organization  if  that  entity  or  organization  has  a  recognized  procedure  for  qualifying  mediators  and  it  grants  such  status  to  the  mediator.        

 B.          A  mediator  shall  not  solicit  in  a  manner  that  gives  an  appearance  of  partiality  for  or  against  a  party  or  otherwise  undermines  the  integrity  of  the  process.        C.          A  mediator  shall  not  communicate  to  others,  in  promotional  materials  or  through  other  forms  of  communication,  the  names  of  persons  served  without  their  permission.      Model Standard VIII: Fees and Other Charges  A.          A  mediator  shall  provide  each  party  or  each  party’s  representative  true  and  complete  information  about  mediation  fees,  expenses  and  any  other  actual  or  potential  charges  that  may  be  incurred  in  connection  with  a  mediation.  

1.          If  a  mediator  charges  fees,  the  mediator  should  develop  them  in  light  of  all  relevant  factors,  including  the  type  and  complexity  of  the  matter,  the  qualifications  of  the  mediator,  the  time  required  and  the  rates  customary  for  such  mediation  services.      

 2.          A  mediator’s  fee  arrangement  should  be  in  writing  unless  the  parties  request  otherwise.  

 B.          A  mediator  shall  not  charge  fees  in  a  manner  that  impairs  a  mediator’s  impartiality.        

1.          A  mediator  should  not  enter  into  a  fee  agreement  which  is  contingent  upon  the  result  of  the  mediation  or  amount  of  the  settlement.  

 2.          While  a  mediator  may  accept  unequal  fee  payments  from  the  parties,  a  mediator  should  not  allow  such  a  fee  arrangement  to  adversely  impact  the  mediator’s  ability  to  conduct  a  mediation  in  an  impartial  manner.        

Model Standard IX: Advancement of Mediation Practice  A.          A  mediator  should  act  in  a  manner  that  advances  the  practice  of  mediation.    A  mediator  promotes  this  Standard  by  engaging  in  some  or  all  of  the  following:    

1.          Fostering  diversity  within  the  field  of  mediation.    

2.          Striving  to  make  mediation  accessible  to  those  who  elect  to  use  it,  including  providing  services  at  a  reduced  rate  or  on  a  pro  bono  basis  as  appropriate.  

 

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3.          Participating  in  research  when  given  the  opportunity,  including  obtaining  participant  feedback  when  appropriate.      

 4.          Participating  in  outreach  and  education  efforts  to  assist  the  public  in  developing  an  improved  understanding  of,  and  appreciation  for,  mediation.  

 5.          Assisting  newer  mediators  through  training,  mentoring  and  networking.  

 B.          A  mediator  should  demonstrate  respect  for  differing  points  of  view  within  the  field,  seek  to  learn  from  other  mediators  and  work  together  with  other  mediators  to  improve  the  profession  and  better  serve  people  in  conflict.            

❊ ❊ ❊

❊

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Note:  In  October  2010,  the  ACR  Board  adopted  a  set  of  ethical  principles  that  apply  to  all  ACR  members.  These  are  reprinted  here.    

Annex III: ACR Ethical Principles     Principles  of  Professionalism:    An  ACR  Neutral  must  adhere  to  the  highest  

standards  of  integrity,  impartiality  and  professional  competence  in  rendering  her  or  his  professional  service.    1. A  Neutral  must  not  accept  any  engagement,  perform  any  service,  or  

undertake  any  act  which  would  compromise  the  Neutral’s  integrity.    2. A  Neutral  must  maintain  professional  competence  in  dispute  resolution  skills  

by  staying  informed  of,  and  abiding  by,  all  relevant  practice  statutes,  rules,  and  administrative  orders  and  by  regularly  engaging  in  educational  activities  that  inform  as  to  professional  practices  and  promote  professional  growth.    

3. A  Neutral  must  decline  appointment,  withdraw,  or  request  technical  assistance  when  the  Neutral  feels  that  a  case  is  beyond  the  Neutral’s  competence.  

4. A  Neutral  must  decline  all  cases  where  there  is  a  conflict  of  interest  or  where  there  is  the  appearance  of  an  impropriety.  

5. A  Neutral  must  not  engage  in  conduct  that  is  considered  contrary  to  professional  standards  of  justice,  honesty  and  ethics,  including  but  not  limited  to  misrepresentation  of  credentials,  crossing  of  professional  boundaries  and  truth  in  advertising.  

  Principles  of  Role:    An  ACR  Neutral  must  respect  the  principle  of  individual  

integrity  by  ensuring  that  in  dispute  resolution  proceedings,  other  than  arbitration  or  other  leader-­‐directed  models  of  dispute  resolution,  decision-­‐making  authority  rests  with  the  participants.    The  role  of  the  Neutral  shall  include  assisting  participants  in  identifying  issues,  reducing  obstacles  to  communication,  maximizing  the  exploration  of  alternatives  and  helping  the  participants  reach  voluntary  agreements.  1. A  Neutral  must  promote  a  balanced  process  and  must  promote  mutual  

respect  among  the  participants  throughout  the  conflict  resolution  process.  2. A  Neutral  must  not  coerce  or  unfairly  influence  a  participant  into  any  

settlement  agreement.  3. A  Neutral  must  not  intentionally  nor  knowingly  misrepresent  material  facts  

or  circumstances  in  the  course  of  conducting  the  conflict  resolution  proceeding.    

4. A  Neutral  must  be  impartial  and  advise  all  participants  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  participants,  as  opposed  to  an  individual  participant  in  conducting  the  conflict  resolution  process.    

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5. A  Neutral  must  promote  informed  decision  making  among  the  participants    in  the  process,  without  offering  legal,  psychological  or  any  other  advice  associated  with  the  Neutral’s  background  and  training.  

  Principles  of  Process:    An  ACR    conflict  resolution  process  should  emphasize  

the  following  principles:  1. Participants’  Self-­‐determination:  The  act  of  participants  coming  to  informed,  

voluntary  and  uncoerced  decisions.  2. Client  Centered  Negotiation:  The  needs  and  interests  of  the  participants  form  

the  basis  upon  which  resolution  is  sought.  3. Neutral’s  Impartiality:  Freedom  from  favoritism  or  bias  in  word,  action,  

attitude  and  appearance;    ensuring  a  commitment  to  aid  all  participants,  as  opposed  to  an  individual  participant,  in  conducting  the  conflict  resolution  process.  

4. Fairness  of  the  Process:  The  balancing  of  the  process  to  meet  the  needs  and  interests  of  the  participants.  

5. Procedural  Flexibility:  Designing  the  process  to  fit  the  circumstances  of  the  situation,  wishes  and  needs  of  the  participants.  

6. Confidentiality:  Keeping  all  information  shared  in  the  process  private  unless  such  privilege  is  waived  by  all  participants.  

7. Full  Disclosure:  All  information  necessary  for  making  informed  decision  by  the  participants.  

8. Informed  Decision  Making:  The  capacity  to  make  decisions  with  full  understanding  of  all  the  information  needed  and  shared.  

         

❊ ❊ ❊

❊  

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NEW YORK STATE UNIFIED COURT SYSTEM

DIVISION OF PROFESSIONAL AND COURT SERVICES

OFFICE OF ADR PROGRAMS

STANDARDS OF CONDUCT FOR NEW YORK STATE COMMUNITY

DISPUTE RESOLUTION CENTER MEDIATORS

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STANDARDS OF CONDUCT FOR NEW YORK STATE COMMUNITY

DISPUTE RESOLUTION CENTER MEDIATORS

INTRODUCTION

The New York State Office of Alternative Dispute Resolution Programs has developed these Standards of Conduct (“Standards”) for New York State mediators in community dispute resolution centers

1 located throughout New York State. These Standards have been adapted

from The Revised Model Standards of Conduct created by the American Arbitration Association, the American Bar Association (Section of Dispute Resolution) and the Association of Conflict Resolution.

2

The Standards are intended to serve as a general framework for the practice of mediation and aim to:

1.) educate mediators regarding current standards of practice;

2.) guide mediators in their practice;

3.) promote public confidence in mediation as a dispute resolution process; and

4.) inform the mediating parties about the process.

The Standards include different levels of guidance3:

Use of the term “may” is the lowest strength of guidance and indicates a practice that the mediator should consider adopting but which can be deviated from in the exercise of good professional judgment.

Use of the term “should” indicates that the practice described in the Standard is strongly suggested and should be departed from only with very strong reason.

Use of the term “shall” is the highest level of guidance to the mediator, indicating that the mediator must follow the practice described.

These Standards of Conduct are applicable to those practicing mediators who mediate under the auspices of a New York State Community Resolution Center Program.

The Standards are listed and followed by Comments, where appropriate. The order of the Comments is not intended to reflect any priority in their importance. The Standards are meant to be read and interpreted in their entirety.

1A Community Dispute Resolution Center is a community-based, private, not-for-profit program that

contracts with the Chief Administrative Judge of the Unified Court System of the State of New York to provide conciliation, mediation, arbitration, or other types of dispute resolution services. 2Joint Committee Draft, January 1, 2004 (approved by the American Bar Association 2005).

3This language is adopted in large part from the Model Standards of Practice for Family and Divorce

Mediation, developed by the Symposium on Standards of Practice (August 2000).

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The Standards are to be used as a guide for ethical mediation practice. The Standards are not intended to be used as a substitute for other professional rules, applicable law, court rules, or regulations.

To the extent that a mediator cannot resolve an ethical dilemma after reading these Standards as a whole, or that the mediator finds that a certain Standard may conflict with another Standard contained therein, the mediator is encouraged to address this concern in writing to the Mediator Ethics Advisory Committee of the New York State Office of ADR Programs.

4 The Mediator

Ethics Advisory Committee recognizes that a mediator may need to resolve a conflict in a shorter time period than the Committee may have to respond. In such a case, the mediator should exercise good professional judgment for guidance in reaching a resolution of the conflict.

5

Nonetheless, the mediator should consult the Mediator Ethics Advisory Committee.

The Standards are followed by “Committee Notes” that clarify, define, and expand on the statements made in the Standards and Comments, as well as a “Definitions” section and an “Appendix.”

4The Mediator Ethics Advisory Committee (“Committee”) serves as an ethics advisory board, to interpret

and clarify the Standards as they are raised by practicing CDRCP mediators in conjunction with an ethical dilemma. The committee is appointed and serves under the rules created by the New York State Office of ADR Programs. The Committee will consider any ethical dilemma that a mediator raises in accordance with its rules, requiring that the mediator state the dilemma in writing and send the request to: The Mediator Ethics Advisory Committee, New York State Office of ADR Programs, 25 Beaver Street, Room 859-A, New York, NY, 10004, or by e-mail to: cdrcp@courts.state.ny.us. 5This may include looking to other applicable professional standards within the mediation field. See

Committee Notes.

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STANDARD I. SELF-DETERMINATION

A mediator shall conduct a mediation in a manner that supports the principle of party self-determination as to both process and outcome. Party self-determination means that parties are free to make voluntary and uncoerced procedural and substantive decisions, including whether to make an informed choice to agree or not agree.

COMMENTS:

1. Parties can exercise self-determination at any stage of a mediation, including mediator selection, process design, participation in the process, and outcomes. The mediator is responsible for supporting party self-determination in each area, tempered by a mediator’s duty to conduct a quality mediation process.

2. Although party self-determination is a fundamental principle of mediation practice, a mediator may need to balance party self-determination with a duty to conduct a quality mediation process. When resolving these potentially conflicting duties, a mediator should be cautious of conflict of interest issues and avoid influencing party decisions for reasons such as higher settlement rates, egos, increased fees and outside pressures from individuals or organizations.

3. A mediator cannot personally ensure that each party has made a fully informed choice to reach a particular agreement, but the mediator can make the parties aware that they may consult other professionals to help them make informed choices at any point during the mediation process.

6

4. Where a power imbalance exists between the parties such that one or both parties cannot exercise self-determination, the mediator should postpone the session, withdraw from the mediation, terminate the mediation, or consult with center staff.

7 (see Committee Notes)

6A party is unable to make a fully informed choice where, for example, the party is unable to articulate his

or her concerns or lacks substantial information regarding the dispute such that the party is unable to make procedural and substantive decisions or an informed decision to agree or not to agree. 7Indicators of a “power imbalance” that may impede a party’s ability to make a decision freely and

willingly include where one party threatens, intimidates, or otherwise coerces the other party into participating in or reaching a desired result in the mediation.

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STANDARD II: IMPARTIALITY

A. A mediator shall conduct a mediation in an impartial manner and shall avoid conduct that gives the appearance of partiality toward or prejudice against a party. Impartiality means freedom from favoritism or prejudice in word, action or appearance.

B. A mediator shall accept for mediation only those matters in which the mediator can remain impartial.

C. If at any time a mediator is unable to conduct the process in an impartial manner, the mediator shall withdraw.

D. In any mediation, a mediator shall neither give nor accept a gift, favor, loan or other item of value that would raise a question as to the mediator’s actual or perceived impartiality.

COMMENTS:

1. A mediator should not act with partiality based on any participant’s race, ethnicity, sex, religion, national origin, or sexual orientation or to any other factors that may create bias on the mediator’s part.(see Committee Notes)

2. During the mediation, a mediator shall maintain impartiality even while raising questions regarding the reality, fairness, equity, durability and feasability of proposed options for resolution. In the event circumstances arise during a mediation that would reasonably be construed to impair or compromise a mediator’s impartiality, the mediator is obligated to withdraw.

8

3. The mediator’s commitment is to remain impartial towards the parties and their choices in the process, in both joint and private sessions with the parties.

9

8FLA Rule 10.330, Committee Notes, Florida Rules for Certified and Court Appointed Mediators (2000

Revision). 9A party may request, or a mediator may offer to the parties as an option, the opportunity to meet

individually with the mediator. This private session is often referred to as a “separate session” or “caucus”. During such separate sessions between a party and the mediator, the mediator continues to be bound by the Standard of Impartiality and the Standard of Confidentiality (Standard V.).

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STANDARD III. CONFLICTS OF INTEREST

A. A mediator shall avoid the appearance of a conflict of interest before, during and after a mediation either by disclosing the conflict or withdrawing from the process.

B. Before accepting a mediation, a mediator shall make a reasonable inquiry to determine whether there are any facts that a reasonable individual would consider likely to create a potential or actual conflict of interest for a mediator. Thereafter, and as soon as practical, a mediator shall disclose all actual and potential conflicts of interest that are reasonably known to the mediator and could reasonably be seen as raising a question about the mediator’s ability to fairly discharge his or her responsibilities. If a mediator learns any fact described above after accepting a mediation, she or he shall disclose it to the parties as soon as is practical. If all parties agree to retain the mediator after disclosure, the mediator may proceed or continue with the mediation. However, if a conflict of interest casts serious doubt on the integrity of the process, the mediator shall withdraw or decline to proceed regardless of the express agreement of the parties.

C. During a mediation, a mediator shall not solicit or otherwise attempt to procure any future professional services, including future mediations, beyond the sessions necessary, to obtain an outcome.

D. Subsequent to mediation, a mediator shall not establish another relationship with one of the parties in any matter that would raise questions about the integrity of the mediation process.

COMMENTS:

1. The mediator’s duty to make a reasonable inquiry may be shaped by the sponsoring organization for which she or he mediates. A mediator should make an inquiry of the parties and participants prior to the time of the mediation regarding potential conflicts of interest. Given the central role that a mediator’s impartiality assumes to promote the integrity and effectiveness of the mediation process, a mediator should avoid conduct that undermines the public’s or party’s perception of her or his impartiality. This duty to avoid conflicts of interest exists at the pre-mediation stage, during the mediation conference, and following the mediation session.

2. Disclosure of relationships or circumstances that would create the potential for a conflict of interest rests on the mediator and should be made at the earliest possible opportunity and under circumstances that will allow the parties to freely exercise their right of self-determination as to both the selection of the mediator and participation in the mediation process.

3. Development of relationships by the mediator following the mediation with persons, organizations or agencies that might create a perceived or actual conflict of interest depend upon considerations such as time elapsed following the mediation and the nature of the relationship established and services offered.

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STANDARD IV: COMPETENCE

A. A mediator shall mediate only when the mediator has the necessary competence to satisfy the reasonable expectations of the parties and the sponsoring organization for which she or he mediates.

B. If a mediator cannot satisfy this Standard, the mediator shall immediately notify the parties and take steps reasonably appropriate under the circumstances, including declining or withdrawing from the mediation or, where appropriate, obtaining assistance from others.

C. A mediator shall not conduct any aspect of a mediation while impaired by drugs, alcohol, medication or otherwise.

COMMENTS:

1. A mediator should obtain the training, skills, experience in mediation, cultural understanding, and other qualities that are necessary for effective mediation, consistent with the sponsoring organization for which he or she mediates.

2. A mediator should inform the parties, where necessary or when asked, of information relevant to the mediator’s training, education and experience.

10

3. A mediator should attend educational programs and related activities to enhance and strengthen his or her personal knowledge of and skills in the mediation process, consistent with the sponsoring organization for which she or he mediates.

10

Under the CDRC Program Manual and as required by Article 21-A of the New York State Judiciary Law governing all New York State community dispute resolution center programs, community mediators are required to complete a minimum of 30 hours of initial training, followed by a supervised apprenticeship at the center where they volunteer prior to becoming a community mediator for that center (CDRCP Program Manual, Ch. 7, Section I. A.(1) (revised January 1, 2007)). Additional training is required for community mediators who mediate disputes in family cases, youth cases, and civil, city, and district court cases (CDRCP Program Manual, Ch. 7, Section I. A.(5)).

41

STANDARD V: CONFIDENTIALITY

A. A mediator shall maintain the confidentiality of all information obtained by the mediator during a mediation, including information obtained from the parties, non-party participants or documents shown to the mediator, with the exception of any allegation of child abuse.

11

COMMENTS:

1. All mediations that are conducted by mediators on behalf of a New York State community resolution center are protected by a confidentiality statute, Article 21-A of the New York State Judiciary Law.

12

2. If an allegation of child abuse is made during the mediation, the mediator is required to stop the mediation process, consult with each party individually for the purpose of obtaining as much information about the circumstances as possible, and consult with center program staff to determine whether to resume the mediation process.

13

3. A mediator who meets with a party in private session during a mediation should not convey directly or indirectly to any other party, group or institution any information that was obtained during that private session without the consent of the disclosing party.

4. A mediator may report, pursuant to the policies of the local center, whether parties appeared at a scheduled mediation and whether or not the parties reached a resolution.

14

5. Nothing in this Standard should be construed to prohibit monitoring, research, and evaluation of mediation activities or the continuing education of mediators.

6. Nothing in this Standard should be construed to prohibit a mediator from disclosing necessary information to staff of the sponsoring organization for which she or he mediates.

11

All centers deem allegations or evidence of child abuse inappropriate for mediation; accordingly, this information is not deemed confidential pursuant to Formal Opinion No. 83-F17 of the New York State Attorney General (1983). 12

This statute protects all memoranda, work product and case files from disclosure in judicial or administrative proceedings and deems confidential all communications that relate to the subject matter of the dispute resolution proceeding. Mediators at community dispute resolution center programs may request participants to sign a written consent form agreeing to mediate in order to ensure full protection under Article 21-A (1981). 13

CDRCP Program Manual, Ch. 5, Section II. A., Guideline IV. New York State CDRCP mediators are required to be aware of these Guidelines (revised May 10, 2012). 14

See generally CDRC Program Manual.

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STANDARD VI: QUALITY OF THE PROCESS

A. A mediator shall conduct a quality mediation process that is consistent with these Standards of Conduct.

B. A mediator shall terminate the mediation, withdraw from service, or take other appropriate steps if she or he believes that participant conduct, including that of the mediator, jeopardizes sustaining a quality mediation process.

C. A mediator shall not exclude a party’s attorney from a mediation session, including an attorney for the child.

COMMENTS:

1. A mediator should agree to mediate only when he or she is prepared to commit the attention essential to an effective mediation.

2. A mediator should only accept cases when she or he can satisfy the reasonable expectation of the parties concerning the timing of the process.

3. A mediator should only accept cases when he or she can satisfy the reasonable expectation of the parties concerning his or her experience and training based on the guidelines of the sponsoring organization for which the mediator mediates.

4. The mediator should respect the decision of a party who chooses not to participate in the presence of another party’s attorney or another third party (see Committee Notes)

5. The primary purpose of a mediator is to help the parties communicate, negotiate, and/or make decisions. This role differs substantially from other professional client relationships. Mixing the role of a mediator and the role of a professional advising a client is problematic, and mediators should strive to distinguish between the roles. A mediator should therefore refrain from providing professional advice. Where appropriate, a mediator should recommend that parties seek outside professional advice or services, or consider resolving their dispute through arbitration, neutral evaluation, or another dispute resolution process.

6. A mediator should not conduct a dispute resolution procedure other than mediation but attempt to characterize it as mediation in an effort to gain the protection of rules, statutes or other governing authorities pertaining to mediation.

7. A mediator who undertakes, at the request of the parties, an additional dispute resolution role in the same matter assumes increased responsibilities and obligations that may be governed by the standards of other professions.

8. If a party appears to have difficulty comprehending the process, issues or settlement options, or difficulty participating in the mediation process, the mediator should explore the circumstances and potential accommodations, modifications or adjustments that would make possible the party’s capacity to comprehend, participate and exercise self-determination. If no such option can be reasonably provided, the mediator should take other appropriate steps, including

43

postponing the session, withdrawing from the mediation or terminating the mediation.

9. A mediator should postpone the session or take other appropriate steps if he or she becomes aware that a party is unable to participate due to drug or alcohol use.

10. If a mediation is being used to further illegal conduct, a mediator should take appropriate steps to insure a quality process including, if necessary, postponing the session, withdrawing from the mediation or terminating the mediation.

11. A mediator has an ongoing obligation to be sensitive to power imbalances between the parties and to ensure that the mediation process is conducted in a manner consistent with these Standards. If the mediator cannot ensure a quality process, the mediator should take appropriate steps to postpone the session, withdraw from the mediation or terminate the mediation.

15 (see Committee Notes)

12. A mediator is responsible for confirming with the parties that mediation is an appropriate dispute resolution process under the circumstances of each case.

16

13. A mediator should consult with center staff if a party reveals or the mediator is otherwise made aware of a credible threat of serious and imminent physical harm to the speaker or to center staff.

15

Such power imbalances include where a party threatens, intimidates, or otherwise coerces the other party into participating in or reaching a desired result in the mediation. 16

FLA Rule 10.400. Mediator’s Responsibility to the Mediation Process.

44

STANDARD VII: ADVERTISING AND SOLICITATION

A mediator shall be truthful and not misleading when advertising, soliciting or otherwise communicating his or her qualifications, experience, and range of available professional services.

COMMENTS:

1. Communications, including business cards, letter heads, or computer based communications, should not include any statistical settlement data or any promises as to outcome.

2. Communications may include references to a mediator’s fulfilling state, national or private organization qualifications only if the entity referred to has a procedure for qualifying mediators, and the mediator has been duly granted the requisite status.

17

3. A mediator should not solicit in a manner that could give an appearance of partiality for or against a party.

4. A mediator should not list names of clients or persons served in promotional materials and communications without their permission.

17

The New York State Office of ADR Programs does not certify mediators. Under the CDRC Program Manual, however, mediators may obtain certification by a local center by completing an initial community training that is at least 30 hours in duration and conducted by a trainer who has been certified by the New York State Office of ADR Programs, followed by an apprenticeship at the center, a performance evaluation under the supervision of the center’s Program Director, and an assessment by the Director that the mediator is prepared to mediate pursuant to the center’s performance standards (Ch. 7, Section 1.A.(1)).

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STANDARD VIII: RESPONSIBILITIES TO THE MEDIATION PROFESSION

A mediator shall act in a manner that enhances the growth and quality of the mediation profession.

COMMENTS: Any person offering mediation services under the auspices of a New York State Community Dispute Resolution Program is considered to be a member of the mediation profession. Among other activities, a mediation professional should:

1. Foster diversity in the mediation field, reaching out to individuals with differing backgrounds and perspectives.

2. Strive to make mediation accessible to those who elect to use it, including providing services at a reduced rate or on a pro bono basis as appropriate.

3. Participate in research in the field when given the opportunity, including obtaining participant feedback when appropriate.

4. Participate in outreach and education efforts to assist the public in developing an improved understanding of, and appreciation for, mediation.

5. Assist newer mediators through training, mentoring and networking.

6. Exhibit tolerance of differing points of view within the field, seeking to learn from one another and work together to improve the profession and better serve people in conflict.

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COMMITTEE NOTES These Committee Notes contain annotations to the Introduction and “Comments” listed under each Standard. The Committee Notes include both “General Notes” and “Comment Notes.” The General Notes contain introductory comments by the Committee and the Comment Notes clarify, define, and expand upon the specific Comment to which they refer. This section may be updated as necessary by the Mediator Ethics Advisory Committee (“Committee”).

Introduction to Committee Notes Where a mediator is unable to resolve an ethical dilemma after reading these Standards as a whole, or finds that a certain Standard conflicts with another Standard contained therein, the mediator is encouraged to address this concern in writing to the Committee. In the interim, a mediator may look to other applicable professional rules or standards within the mediation field. Specific reference should be made to the Community Dispute Resolution Program Manual as a general rule, but particularly in circumstances that require immediate and decisive action by a mediator. Such instances may include where a party is in danger by the other party due to domestic violence, or the particular protocol a mediator should employ if a party reveals or the mediator is otherwise made aware of an allegation of child abuse. A mediator might also look to the Model Standards of Practice for Family and Divorce Mediation, that specifically addresses ethical practice for mediators of family cases (Symposium on Standards of Practice August 2001).

STANDARD I. SELF-DETERMINATION General Notes Practitioners and scholars cite self-determination as the fundamental principle of mediation. Comments for Standard I, however, identify how this principle might conflict with other Standards and suggest that a mediator’s duty, in limited circumstances, may override this principle. Comment Notes Comment 4. The Committee recognizes that power imbalances are an inherit

part of mediation between any two parties, based on many factors including informational, emotional, or verbal differences, or even due to the disparity between the numbers of parties at the table. However, since the issue of power at the mediation table concerns the fundamental principle of self-determination, the mediator should be sensitive to any significant challenge to a party’s ability to freely and willingly make decisions regarding his or her own future. Such circumstances include where one party is threatening, intimidating, or otherwise manipulating the other party through either words or actions. In those cases the mediator should take immediate action to either postpone the session, withdraw from the mediation or terminate the mediation.

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STANDARD II: IMPARTIALITY Comment Notes Comment

1. The Committee’s intention in this Comment is to reflect all possible bases of bias that may cause a mediator to act with partiality. The classes of persons listed under this Comment are provided as examples, and are not intended to serve as an exhaustive or exclusive list.

The Committee’s emphasis is on the mediator’s action with regard to any bias he or she may hold. A mediator who may have a particular bias towards a party for any reason must not act with partiality due to her or his views. A mediator who is unable to act in an impartial, neutral way towards all parties in the dispute must decline to mediate or withdraw from the mediation.

STANDARD VI: QUALITY OF THE PROCESS Comment Notes Comment 4. A center must permit all parties to appear with representatives,

including counsel, and to present all relevant evidence relating to the dispute, including calling and examining witnesses (22 New York Code of Rules and Regulations Part 116.3(I); see also and CDRC Program Manual, Ch. 5, Section IV. B.(3)). Parties who speak another language are afforded the assistance of a court interpreter, who must be present in the mediation (although no direct authority addresses this, this practice is recognized by centers as an “equal access to justice” issue; indirectly, this practice is covered under CDRC Program Manual Ch. 5, Section IV. B.(4), centers shall not discriminate on the basis of age, sex, religion, creed, ethnic origin, sexual orientation or disability) (emphasis added). Parties may also request the presence of other third parties, such as friends and/or family for support. Prior to the mediation, both parties should determine together if these third parties will participate in the session.

Comment 11. A mediator has a duty to conduct a quality mediation process. The

quality of the process, consistent with the Standards, requires the mediator to conduct a process that supports party self-determination, with impartiality, no conflicts of interest, competence, and by upholding the confidentiality of the parties (with the exception of child abuse). Specifically, this Comment refers to the Standard of Self-Determination (Standard I.). As the Committee states in Committee Notes to Standard I. Self-Determination, Comment 4., any significant challenge to a party’s ability to self-determine or freely and willingly make decisions regarding his or her own future should be a concern to the mediator, such as when one party is threatening, intimidating, or otherwise manipulating the other party through either words or actions. In such circumstances, the mediator should take immediate action to either postpone the session, withdraw from the mediation or terminate the mediation.

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DEFINITIONS Conflict of Interest: A person has a conflict of interest when a person is in a position that requires him or her to exercise judgment on behalf of others and also has interests or obligations that might interfere with the exercise of his or her judgment.

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Impartiality: Impartiality means freedom from favoritism or prejudice in word, action or appearance. Mediation: For the purpose of these Standards, mediation is defined as a confidential, informal procedure in which a neutral third party helps disputants communicate, negotiate, and/or make decisions. With the assistance of a mediator, parties identify issues, clarify perceptions and explore options for a mutually acceptable outcome.

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www.unmc.edu/ethics/words.html.

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APPENDIX

ARTICLE 21-A COMMUNITY DISPUTE RESOLUTION

CENTERS PROGRAM

Section 849-a. Definitions. 849-b. Establishment and administration of centers. 849-c. Application procedures. 849-d. Payment procedures. 849-e. Funding. 849-f. Rules and regulations. 849-g. Reports. S 849-a. Definitions. For the purposes of this article: 1. "Center" means a community dispute center which provides

conciliation, mediation, arbitration or other forms and techniques of dispute resolution. 2. "Mediator" means an impartial person who assists in the

resolution of a dispute. 3. "Grant recipient" means any nonprofit organization that

administers a community dispute resolution center pursuant to this article, and is organized for the resolution of disputes or for religious, charitable or educational purposes.

S 849-b. Establishment and administration of centers.

1. There is hereby established the community dispute resolution center program, to be administered and supervised under the direction of the chief administrator of the courts, to provide funds pursuant to this article for the establishment and continuance of dispute resolution centers on the basis of need in neighborhoods.

2. Every center shall be operated by a grant recipient. 3. All centers shall be operated pursuant to contract with the chief administrator and shall comply with all provisions of this article. The chief administrator shall promulgate rules and regulations to effectuate the purposes of this article, including provisions for periodic monitoring and evaluation of the program.

4. A center shall not be eligible for funds under this article unless: (a) it complies with the provisions of this article and the

applicable rules and regulations of the chief administrator; (b) it provides neutral mediators who have received at least

twenty-five hours of training in conflict resolution techniques; (c) it provides dispute resolution without cost to indigents and at nominal or no cost to other participants; (d) it provides that during or at the conclusion of the dispute resolution process there shall be a written agreement or decision setting forth the settlement of the issues and future responsibilities of each party and that such agreement or decision shall be available to a court which has adjourned a pending action pursuant to section 170.55 of the criminal procedure law; (e) it does not make monetary awards except upon consent of the parties and such awards do not exceed the monetary jurisdiction of the small claims part of the justice court, except that where an action has been adjourned in contemplation of dismissal pursuant to section 215.10 of the criminal procedure law, a monetary award not in excess of five thousand dollars may be made; and (f) it does not accept for dispute resolution any defendant who is named in a filed felony complaint, superior court information, or indictment, charging: (i) a class A felony, or (ii) a violent felony offense as defined in section 70.02 of the penal law, or (iii) any drug offense as defined in article two hundred twenty of the penal law, or (iv) a felony upon the conviction of which defendant must be sentenced as a second felony offender, a second violent felony offender, or a persistent violent felony offender pursuant to sections 70.06, 70.04 and 70.08 of the penal law, or a

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felony upon the conviction of which defendant may be sentenced as a persistent felony offender pursuant to section 70.10 of such law.

5. Parties must be provided in advance of the dispute resolution process with a written statement relating: (a) their rights and obligations; (b) the nature of the dispute; (c) their right to call and examine witnesses; (d) that a written decision with the reasons therefor will be rendered; and (e) that the dispute resolution process will be final and binding upon the parties. 6. Except as otherwise expressly provided in this article, all memoranda, work products, or case files of a mediator are confidential and not subject to disclosure in any judicial or administrative proceeding. Any communication relating to the subject matter of the resolution made during the resolution process by any participant, mediator, or any other person present at the dispute resolution shall be a confidential communication.

S 849-c. Application procedures. 1. Funds appropriated or available

for the purposes of this article may be allocated for programs proposed by eligible centers. Nothing in this article shall preclude existing resolution centers from applying for funds made available under this article provided that they are otherwise in compliance with this article.

2. Centers shall be selected by the chief administrator from applications submitted. 3. The chief administrator shall require that applications submitted for funding include, but need not be limited to the following:

(a) The cost of each of the proposed centers components including the proposed compensation of employees. (b) A description of the proposed area of service and number of participants who may be served. (c) A description of available dispute resolution services and facilities within the proposed geographical area. (d) A description of the applicant`s proposed program, including support of civic groups, social services agencies and criminal justice agencies to accept and make referrals; the present availability of resources; and the applicant`s administrative capacity. (e) Such additional information as is determined to be needed pursuant to rules of the chief administrator.

S 849-d. Payment procedures. 1. Upon the approval of the chief

administrator, funds appropriated or available for the purposes of this article shall be used for the costs of operation of approved programs. The methods of payment or reimbursement for dispute resolution costs shall be specified by the chief administrator and may vary among centers. All such arrangements shall conform to the eligibility criteria of this article and the rules and regulations of the chief administrator. 2. The state share of the cost of any center approved under this section shall include a basic grant of up to twenty thousand dollars for each county served by the center and may include an additional amount not exceeding fifty per centum of the difference between the approved estimated cost of the program and the basic grant.

S 849-e. Funding. 1. The chief administrator may accept and disburse

from any public or private agency or person, any money for the purposes of this article. 2. The chief administrator may also receive and disburse federal funds for purposes of this article, and perform services and acts as may be necessary for the receipt and disbursement of such federal funds.

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(a) A grant recipient may accept funds from any public or private agency or person for the purposes of this article.

(b) The state comptroller, the chief administrator and their authorized representatives, shall have the power to inspect, examine and audit the fiscal affairs of the program. (c) Centers shall, whenever reasonably possible, make use of public facilities at free or nominal cost.

S 849-f. Rules and regulations. The chief administrator shall promulgate rules and regulations to effectuate the purposes of this article. S 849-g. Reports. Each resolution center funded pursuant to this article shall annually provide the chief administrator with statistical data regarding the operating budget, the number of referrals, categories or types of cases referred, number of parties serviced, number of disputes resolved, nature of resolution, amount and type of awards, rate of compliance, returnees to the resolution process, duration and estimated costs of hearings and such other information the chief administrator may require and the cost of hearings as the chief administrator requires. The chief administrator shall thereafter report annually to the governor and the and the temporary president of the senate, speaker of the assembly, and chairpersons of the judiciary and children and families committees regarding the operation and success of the centers funded pursuant to this article. The chief administrator shall include in such report all the information for each center that is required to be in the report from each center to the chief administrator.

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MODEL STANDARDS OF CONDUCT FOR MEDIATORS

AMERICAN ARBITRATION ASSOCIATION

(ADOPTED SEPTEMBER 8, 2005)

AMERICAN BAR ASSOCIATION

(APPROVED BY THE ABA HOUSE OF DELEGATES AUGUST 9, 2005)

ASSOCIATION FOR CONFLICT RESOLUTION

(ADOPTED AUGUST 22, 2005)

SEPTEMBER 2005

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The Model Standards of Conduct for Mediators 2005

The Model Standards of Conduct for Mediators was prepared in 1994 by

the American Arbitration Association, the American Bar Association’s Section of Dispute Resolution, and the Association for Conflict Resolution1. A joint committee consisting of representatives from the same successor organizations revised the Model Standards in 2005.2 Both the original 1994 version and the 2005 revision have been approved by each participating organization.3

Preamble Mediation is used to resolve a broad range of conflicts within a variety of settings. These Standards are designed to serve as fundamental ethical guidelines for persons mediating in all practice contexts. They serve three primary goals: to guide the conduct of mediators; to inform the mediating parties; and to promote public confidence in mediation as a process for resolving disputes.

Mediation is a process in which an impartial third party facilitates communication and negotiation and promotes voluntary decision making by the parties to the dispute.

Mediation serves various purposes, including providing the opportunity for parties to define and clarify issues, understand different perspectives, identify interests, explore and assess possible solutions, and reach mutually satisfactory agreements, when desired.

Note on Construction

These Standards are to be read and construed in their entirety. There is no priority significance attached to the sequence in which the Standards appear.

1 The Association for Conflict Resolution is a merged organization of the Academy of Family Mediators, the Conflict Resolution Education Network and the Society of Professionals in Dispute Resolution (SPIDR). SPIDR was the third participating organization in the development of the 1994 Standards. 2 Reporter’s Notes, which are not part of these Standards and therefore have not been specifically approved by any of the organizations, provide commentary regarding these revisions. 3 The 2005 version to the Model Standards were approved by the American Bar Association’s House of Delegates on August 9, 2005, the Board of the Association of Conflict Resolution on August 22, 2005 and the Executive Committee of the American Arbitration Association on September 8, 2005.

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The use of the term “shall” in a Standard indicates that the mediator must follow the practice described. The use of the term “should” indicates that the practice described in the standard is highly desirable, but not required, and is to be departed from only for very strong reasons and requires careful use of judgment and discretion.

The use of the term “mediator” is understood to be inclusive so that it applies to co-mediator models.

These Standards do not include specific temporal parameters when

referencing a mediation, and therefore, do not define the exact beginning or ending of a mediation.

Various aspects of a mediation, including some matters covered by these

Standards, may also be affected by applicable law, court rules, regulations, other applicable professional rules, mediation rules to which the parties have agreed and other agreements of the parties. These sources may create conflicts with, and may take precedence over, these Standards. However, a mediator should make every effort to comply with the spirit and intent of these Standards in resolving such conflicts. This effort should include honoring all remaining Standards not in conflict with these other sources.

These Standards, unless and until adopted by a court or other regulatory

authority do not have the force of law. Nonetheless, the fact that these Standards have been adopted by the respective sponsoring entities, should alert mediators to the fact that the Standards might be viewed as establishing a standard of care for mediators.

STANDARD I. SELF-DETERMINATION A. A mediator shall conduct a mediation based on the principle of party self-

determination. Self-determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome. Parties may exercise self-determination at any stage of a mediation, including mediator selection, process design, participation in or withdrawal from the process, and outcomes. 1. Although party self-determination for process design is a

fundamental principle of mediation practice, a mediator may need to balance such party self-determination with a mediator’s duty to conduct a quality process in accordance with these Standards.

2. A mediator cannot personally ensure that each party has made free

and informed choices to reach particular decisions, but, where

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appropriate, a mediator should make the parties aware of the importance of consulting other professionals to help them make informed choices.

B. A mediator shall not undermine party self-determination by any party for

reasons such as higher settlement rates, egos, increased fees, or outside pressures from court personnel, program administrators, provider organizations, the media or others.

STANDARD II. IMPARTIALITY A. A mediator shall decline a mediation if the mediator cannot conduct it in an

impartial manner. Impartiality means freedom from favoritism, bias or prejudice.

B. A mediator shall conduct a mediation in an impartial manner and avoid

conduct that gives the appearance of partiality. 1. A mediator should not act with partiality or prejudice based on any

participant’s personal characteristics, background, values and beliefs, or performance at a mediation, or any other reason.

2. A mediator should neither give nor accept a gift, favor, loan or other

item of value that raises a question as to the mediator’s actual or perceived impartiality.

3. A mediator may accept or give de minimis gifts or incidental items

or services that are provided to facilitate a mediation or respect cultural norms so long as such practices do not raise questions as to a mediator’s actual or perceived impartiality.

C. If at any time a mediator is unable to conduct a mediation in an impartial

manner, the mediator shall withdraw.

STANDARD III. CONFLICTS OF INTEREST A. A mediator shall avoid a conflict of interest or the appearance of a conflict

of interest during and after a mediation. A conflict of interest can arise from involvement by a mediator with the subject matter of the dispute or from any relationship between a mediator and any mediation participant, whether past or present, personal or professional, that reasonably raises a question of a mediator’s impartiality.

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B. A mediator shall make a reasonable inquiry to determine whether there

are any facts that a reasonable individual would consider likely to create a potential or actual conflict of interest for a mediator. A mediator’s actions necessary to accomplish a reasonable inquiry into potential conflicts of interest may vary based on practice context.

C. A mediator shall disclose, as soon as practicable, all actual and potential

conflicts of interest that are reasonably known to the mediator and could reasonably be seen as raising a question about the mediator’s impartiality. After disclosure, if all parties agree, the mediator may proceed with the mediation.

D. If a mediator learns any fact after accepting a mediation that raises a

question with respect to that mediator’s service creating a potential or actual conflict of interest, the mediator shall disclose it as quickly as practicable. After disclosure, if all parties agree, the mediator may proceed with the mediation.

E. If a mediator’s conflict of interest might reasonably be viewed as

undermining the integrity of the mediation, a mediator shall withdraw from or decline to proceed with the mediation regardless of the expressed desire or agreement of the parties to the contrary.

F. Subsequent to a mediation, a mediator shall not establish another

relationship with any of the participants in any matter that would raise questions about the integrity of the mediation. When a mediator develops personal or professional relationships with parties, other individuals or organizations following a mediation in which they were involved, the mediator should consider factors such as time elapsed following the mediation, the nature of the relationships established, and services offered when determining whether the relationships might create a perceived or actual conflict of interest.

STANDARD IV. COMPETENCE A. A mediator shall mediate only when the mediator has the necessary

competence to satisfy the reasonable expectations of the parties. 1. Any person may be selected as a mediator, provided that the

parties are satisfied with the mediator’s competence and qualifications. Training, experience in mediation, skills, cultural understandings and other qualities are often necessary for mediator

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competence. A person who offers to serve as a mediator creates the expectation that the person is competent to mediate effectively.

2. A mediator should attend educational programs and related

activities to maintain and enhance the mediator’s knowledge and skills related to mediation.

3. A mediator should have available for the parties’ information

relevant to the mediator’s training, education, experience and approach to conducting a mediation.

B. If a mediator, during the course of a mediation determines that the

mediator cannot conduct the mediation competently, the mediator shall discuss that determination with the parties as soon as is practicable and take appropriate steps to address the situation, including, but not limited to, withdrawing or requesting appropriate assistance.

C. If a mediator’s ability to conduct a mediation is impaired by drugs, alcohol,

medication or otherwise, the mediator shall not conduct the mediation.

STANDARD V. CONFIDENTIALITY A. A mediator shall maintain the confidentiality of all information obtained by

the mediator in mediation, unless otherwise agreed to by the parties or required by applicable law. 1. If the parties to a mediation agree that the mediator may disclose

information obtained during the mediation, the mediator may do so. 2. A mediator should not communicate to any non-participant

information about how the parties acted in the mediation. A mediator may report, if required, whether parties appeared at a scheduled mediation and whether or not the parties reached a resolution.

3. If a mediator participates in teaching, research or evaluation of

mediation, the mediator should protect the anonymity of the parties and abide by their reasonable expectations regarding confidentiality.

B. A mediator who meets with any persons in private session during a

mediation shall not convey directly or indirectly to any other person, any information that was obtained during that private session without the consent of the disclosing person.

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C. A mediator shall promote understanding among the parties of the extent to

which the parties will maintain confidentiality of information they obtain in a mediation.

D. Depending on the circumstance of a mediation, the parties may have

varying expectations regarding confidentiality that a mediator should address. The parties may make their own rules with respect to confidentiality, or the accepted practice of an individual mediator or institution may dictate a particular set of expectations.

STANDARD VI. QUALITY OF THE PROCESS A. A mediator shall conduct a mediation in accordance with these Standards

and in a manner that promotes diligence, timeliness, safety, presence of the appropriate participants, party participation, procedural fairness, party competency and mutual respect among all participants. 1. A mediator should agree to mediate only when the mediator is

prepared to commit the attention essential to an effective mediation.

2. A mediator should only accept cases when the mediator can satisfy

the reasonable expectation of the parties concerning the timing of a mediation.

3. The presence or absence of persons at a mediation depends on

the agreement of the parties and the mediator. The parties and mediator may agree that others may be excluded from particular sessions or from all sessions.

4. A mediator should promote honesty and candor between and

among all participants, and a mediator shall not knowingly misrepresent any material fact or circumstance in the course of a mediation.

5. The role of a mediator differs substantially from other professional

roles. Mixing the role of a mediator and the role of another profession is problematic and thus, a mediator should distinguish between the roles. A mediator may provide information that the mediator is qualified by training or experience to provide, only if the mediator can do so consistent with these Standards.

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6. A mediator shall not conduct a dispute resolution procedure other than mediation but label it mediation in an effort to gain the protection of rules, statutes, or other governing authorities pertaining to mediation.

7. A mediator may recommend, when appropriate, that parties

consider resolving their dispute through arbitration, counseling, neutral evaluation or other processes.

8. A mediator shall not undertake an additional dispute resolution role

in the same matter without the consent of the parties. Before providing such service, a mediator shall inform the parties of the implications of the change in process and obtain their consent to the change. A mediator who undertakes such role assumes different duties and responsibilities that may be governed by other standards.

9. If a mediation is being used to further criminal conduct, a mediator

should take appropriate steps including, if necessary, postponing, withdrawing from or terminating the mediation.

10. If a party appears to have difficulty comprehending the process,

issues, or settlement options, or difficulty participating in a mediation, the mediator should explore the circumstances and potential accommodations, modifications or adjustments that would make possible the party’s capacity to comprehend, participate and exercise self-determination.

B. If a mediator is made aware of domestic abuse or violence among the

parties, the mediator shall take appropriate steps including, if necessary, postponing, withdrawing from or terminating the mediation.

C. If a mediator believes that participant conduct, including that of the

mediator, jeopardizes conducting a mediation consistent with these Standards, a mediator shall take appropriate steps including, if necessary, postponing, withdrawing from or terminating the mediation.

STANDARD VII. ADVERTISING AND SOLICITATION A. A mediator shall be truthful and not misleading when advertising, soliciting

or otherwise communicating the mediator’s qualifications, experience, services and fees.

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1. A mediator should not include any promises as to outcome in communications, including business cards, stationery, or computer-based communications.

2. A mediator should only claim to meet the mediator qualifications of

a governmental entity or private organization if that entity or organization has a recognized procedure for qualifying mediators and it grants such status to the mediator.

B. A mediator shall not solicit in a manner that gives an appearance of

partiality for or against a party or otherwise undermines the integrity of the process.

C. A mediator shall not communicate to others, in promotional materials or

through other forms of communication, the names of persons served without their permission.

STANDARD VIII. FEES AND OTHER CHARGES A. A mediator shall provide each party or each party’s representative true

and complete information about mediation fees, expenses and any other actual or potential charges that may be incurred in connection with a mediation.

1. If a mediator charges fees, the mediator should develop them in

light of all relevant factors, including the type and complexity of the matter, the qualifications of the mediator, the time required and the rates customary for such mediation services.

2. A mediator’s fee arrangement should be in writing unless the

parties request otherwise. B. A mediator shall not charge fees in a manner that impairs a mediator’s

impartiality.

1. A mediator should not enter into a fee agreement which is contingent upon the result of the mediation or amount of the settlement.

2. While a mediator may accept unequal fee payments from the

parties, a mediator should not allow such a fee arrangement to adversely impact the mediator’s ability to conduct a mediation in an impartial manner.

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STANDARD IX. ADVANCEMENT OF MEDIATION PRACTICE A. A mediator should act in a manner that advances the practice of

mediation. A mediator promotes this Standard by engaging in some or all of the following:

1. Fostering diversity within the field of mediation. 2. Striving to make mediation accessible to those who elect to use it,

including providing services at a reduced rate or on a pro bono basis as appropriate.

3. Participating in research when given the opportunity, including

obtaining participant feedback when appropriate. 4. Participating in outreach and education efforts to assist the public in

developing an improved understanding of, and appreciation for, mediation.

5. Assisting newer mediators through training, mentoring and

networking. B. A mediator should demonstrate respect for differing points of view within

the field, seek to learn from other mediators and work together with other mediators to improve the profession and better serve people in conflict.

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Association of Family and Conciliation Courts

Model Standards ofPractice for Family andDivorce Mediation

© 2000 Association of Family and Conciliation Courts 63

1

Model Standards of Practice for Family and Divorce Mediation

Overview and Definitions

Family and divorce mediation ("family mediation" or "mediation") is a process in which a

mediator, an impartial third party, facilitates the resolution of family disputes by promoting the

participants’ voluntary agreement. The family mediator assists communication, encourages

understanding and focuses the participants on their individual and common interests. The family

mediator works with the participants to explore options, make decisions and reach their own

agreements.

Family mediation is not a substitute for the need for family members to obtain independent legal

advice or counseling or therapy. Nor is it appropriate for all families. However, experience has

established that family mediation is a valuable option for many families because it can:

1. increase the self-determination of participants and their ability to communicate; 2. promote the best interests of children; and 3. reduce the economic and emotional costs associated with the resolution of family disputes.

Effective mediation requires that the family mediator be qualified by training, experience and

temperament; that the mediator be impartial; that the participants reach their decisions

voluntarily; that their decisions be based on sufficient factual data; that the mediator be aware of

the impact of culture and diversity; and that the best interests of children be taken into account.

Further, the mediator should also be prepared to identify families whose history includes

domestic abuse or child abuse.

These Model Standards of Practice for Family and Divorce Mediation ("Model Standards") aim

to perform three major functions:

1. to serve as a guide for the conduct of family mediators; 2. to inform the mediating participants of what they can expect; and 3. to promote public confidence in mediation as a process for resolving family disputes.

The Model Standards are aspirational in character. They describe good practices for family

mediators. They are not intended to create legal rules or standards of liability.

The Model Standards include different levels of guidance:

1. Use of the term "may" in a Standard is the lowest strength of guidance and indicates a practice that the family mediator should consider adopting but which can be deviated from in the exercise of good professional judgment.

2. Most of the Standards employ the term "should" which indicates that the practice described in the Standard is highly desirable and should be departed from only with very strong reason.

3. The rarer use of the term "shall" in a Standard is a higher level of guidance to the family mediator, indicating that the mediator should not have discretion to depart from the practice described.

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2

Standard I

A family mediator shall recognize that mediation is based on the principle of self-

determination by the participants.

A. Self-determination is the fundamental principle of family mediation. The mediation process relies upon the ability of participants to make their own voluntary and informed decisions.

B. The primary role of a family mediator is to assist the participants to gain a better understanding of their own needs and interests and the needs and interests of others and to facilitate agreement among the participants.

C. A family mediator should inform the participants that they may seek information and advice from a variety of sources during the mediation process.

D. A family mediator shall inform the participants that they may withdraw from family mediation at any time and are not required to reach an agreement in mediation.

E. The family mediator’s commitment shall be to the participants and the process. Pressure from outside of the mediation process shall never influence the mediator to coerce participants to settle.

Standard II

A family mediator shall be qualified by education and training to undertake the mediation.

A. To perform the family mediator’s role, a mediator should:

1. have knowledge of family law;

2. have knowledge of and training in the impact of family conflict on parents, children and other participants, including knowledge of child development, domestic abuse and child abuse and neglect;

3. have education and training specific to the process of mediation;

4. be able to recognize the impact of culture and diversity.

B. Family mediators should provide information to the participants about the mediator’s

relevant training, education and expertise.

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3

Standard III

A family mediator shall facilitate the participants’ understanding of what mediation is and

assess their capacity to mediate before the participants reach an agreement to mediate.

A. Before family mediation begins a mediator should provide the participants with an overview of the process and its purposes, including:

1. informing the participants that reaching an agreement in family mediation is consensual in nature, that a mediator is an impartial facilitator, and that a mediator may not impose or force any settlement on the parties;

2. distinguishing family mediation from other processes designed to address family issues and disputes;

3. informing the participants that any agreements reached will be reviewed by the court when court approval is required;

4. informing the participants that they may obtain independent advice from attorneys, counsel, advocates, accountants, therapists or other professionals during the mediation process;

5. advising the participants, in appropriate cases, that they can seek the advice of religious figures, elders or other significant persons in their community whose opinions they value;

6. discussing, if applicable, the issue of separate sessions with the participants, a description of the circumstances in which the mediator may meet alone with any of the participants, or with any third party and the conditions of confidentiality concerning these separate sessions;

7. informing the participants that the presence or absence of other persons at a mediation, including attorneys, counselors or advocates, depends on the agreement of the participants and the mediator, unless a statute or regulation otherwise requires or the mediator believes that the presence of another person is required or may be beneficial because of a history or threat of violence or other serious coercive activity by a participant;

8. describing the obligations of the mediator to maintain the confidentiality of the mediation process and its results as well as any exceptions to confidentiality;

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9. advising the participants of the circumstances under which the mediator may suspend or terminate the mediation process and that a participant has a right to suspend or terminate mediation at any time.

B. The participants should sign a written agreement to mediate their dispute and the terms

and conditions thereof within a reasonable time after first consulting the family mediator.

C. The family mediator should be alert to the capacity and willingness of the participants to

mediate before proceeding with the mediation and throughout the process. A mediator

should not agree to conduct the mediation if the mediator reasonably believes one or

more of the participants is unable or unwilling to participate.

D. Family mediators should not accept a dispute for mediation if they cannot satisfy the

expectations of the participants concerning the timing of the process.

Standard IV

A family mediator shall conduct the mediation process in an impartial manner. A family

mediator shall disclose all actual and potential grounds of bias and conflicts of

interest reasonably known to the mediator. The participants shall be free to retain the

mediator by an informed, written waiver of the conflict of interest. However, if a bias or

conflict of interest clearly impairs a mediator’s impartiality, the mediator shall withdraw

regardless of the express agreement of the participants.

A. Impartiality means freedom from favoritism or bias in word, action or appearance, and includes a commitment to assist all participants as opposed to any one individual.

B. Conflict of interest means any relationship between the mediator, any participant or the subject matter of the dispute, that compromises or appears to compromise the mediator’s impartiality.

C. A family mediator should not accept a dispute for mediation if the family mediator cannot be impartial.

D. A family mediator should identify and disclose potential grounds of bias or conflict of interest upon which a mediator’s impartiality might reasonably be questioned. Such disclosure should be made prior to the start of a mediation and in time to allow the participants to select an alternate mediator.

E. A family mediator should resolve all doubts in favor of disclosure. All disclosures should be made as soon as practical after the mediator becomes aware of the bias or potential conflict of interest. The duty to disclose is a continuing duty.

F. A family mediator should guard against bias or partiality based on the participants’ personal characteristics, background or performance at the mediation.

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G. A family mediator should avoid conflicts of interest in recommending the services of other professionals.

H. A family mediator shall not use information about participants obtained in a mediation for personal gain or advantage.

I. A family mediator should withdraw pursuant to Standard IX if the mediator believes the mediator’s impartiality has been compromised or a conflict of interest has been identified and has not been waived by the participants.

Standard V

A family mediator shall fully disclose and explain the basis of any compensation, fees

and charges to the participants.

A. The participants should be provided with sufficient information about fees at the outset of mediation to determine if they wish to retain the services of the mediator.

B. The participants’ written agreement to mediate their dispute should include a description of their fee arrangement with the mediator.

C. A mediator should not enter into a fee agreement which is contingent upon the results of the mediation or the amount of the settlement.

D. A mediator should not accept a fee for referral of a matter to another mediator or to any other person.

E. Upon termination of mediation a mediator should return any unearned fee to the participants.

Standard VI

A family mediator shall structure the mediation process so that the participants make

decisions based on sufficient information and knowledge.

A. The mediator should facilitate full and accurate disclosure and the acquisition and development of information during mediation so that the participants can make informed decisions. This may be accomplished by encouraging participants to consult appropriate experts.

B. Consistent with standards of impartiality and preserving participant self-determination, a mediator may provide the participants with information that the mediator is qualified by training or experience to provide. The mediator shall not provide therapy or legal advice.

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C. The mediator should recommend that the participants obtain independent legal representation before concluding an agreement.

D. If the participants so desire, the mediator should allow attorneys, counsel or advocates for the participants to be present at the mediation sessions.

E. With the agreement of the participants, the mediator may document the participants’ resolution of their dispute. The mediator should inform the participants that any agreement should be reviewed by an independent attorney before it is signed.

Standard VII

A family mediator shall maintain the confidentiality of all information acquired in the

mediation process, unless the mediator is permitted or required to reveal the information by

law or agreement of the participants.

A. The mediator should discuss the participants’ expectations of confidentiality with them prior to undertaking the mediation. The written agreement to mediate should include provisions concerning confidentiality.

B. Prior to undertaking the mediation the mediator should inform the participants of the limitations of confidentiality such as statutory, judicially or ethically mandated reporting.

C. The mediator shall disclose a participant’s threat of suicide or violence against any person to the threatened person and the appropriate authorities if the mediator believes such threat is likely to be acted upon as permitted by law.

D. If the mediator holds private sessions with a participant, the obligations of confidentiality concerning those sessions should be discussed and agreed upon prior to the sessions.

E. If subpoenaed or otherwise noticed to testify or to produce documents the mediator should inform the participants immediately. The mediator should not testify or provide documents in response to a subpoena without an order of the court if the mediator reasonably believes doing so would violate an obligation of confidentiality to the participants.

Standard VIII

A family mediator shall assist participants in determining how to promote the best interests of

children.

A. The mediator should encourage the participants to explore the range of options available for separation or post divorce parenting arrangements and their respective costs and benefits. Referral to a specialist in child development may be appropriate for these purposes. The topics for discussion may include, among others:

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1. information about community resources and programs that can help the participants and their children cope with the consequences of family reorganization and family violence;

2. problems that continuing conflict creates for children’s development and what steps might be taken to ameliorate the effects of conflict on the children;

3. development of a parenting plan that covers the children’s physical residence and decision-making responsibilities for the children, with appropriate levels of detail as agreed to by the participants;

4. the possible need to revise parenting plans as the developmental needs of the children evolve over time; and

5. encouragement to the participants to develop appropriate dispute resolution mechanisms to facilitate future revisions of the parenting plan.

B. The mediator should be sensitive to the impact of culture and religion on parenting philosophy and other decisions.

C. The mediator shall inform any court-appointed representative for the children of the mediation. If a representative for the children participates, the mediator should, at the outset, discuss the effect of that participation on the mediation process and the confidentiality of the mediation with the participants. Whether the representative of the children participates or not, the mediator shall provide the representative with the resulting agreements insofar as they relate to the children.

D. Except in extraordinary circumstances, the children should not participate in the mediation process without the consent of both parents and the children's court-appointed representative.

E. Prior to including the children in the mediation process, the mediator should consult with the parents and the children’s court-appointed representative about whether the children should participate in the mediation process and the form of that participation.

F. The mediator should inform all concerned about the available options for the children’s participation (which may include personal participation, an interview with a mental health professional, or the mediator reporting to the parents, or a videotape statement) and discuss the costs and benefits of each with the participants.

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Standard IX

A family mediator shall recognize a family situation involving child abuse or neglect and take

appropriate steps to shape the mediation process accordingly.

A. As used in these Standards, child abuse or neglect is defined by applicable state law.

B. A mediator shall not undertake a mediation in which the family situation has been assessed to involve child abuse or neglect without appropriate and adequate training.

C. If the mediator has reasonable grounds to believe that a child of the participants is abused or neglected within the meaning of the jurisdiction’s child abuse and neglect laws, the mediator shall comply with applicable child protection laws.

1. The mediator should encourage the participants to explore appropriate services for the family.

2. The mediator should consider the appropriateness of suspending or terminating the mediation process in light of the allegations.

Standard X

A family mediator shall recognize a family situation involving domestic abuse and take

appropriate steps to shape the mediation process accordingly.

A. As used in these Standards, domestic abuse includes domestic violence as defined by applicable state law and issues of control and intimidation.

B. A mediator shall not undertake a mediation in which the family situation has been assessed to involve domestic abuse without appropriate and adequate training.

C. Some cases are not suitable for mediation because of safety, control or intimidation issues. A mediator should make a reasonable effort to screen for the existence of domestic abuse prior to entering into an agreement to mediate. The mediator should continue to assess for domestic abuse throughout the mediation process.

D. If domestic abuse appears to be present the mediator shall consider taking measures to insure the safety of participants and the mediator including, among others:

1. establishing appropriate security arrangements;

2. holding separate sessions with the participants even without the agreement of all participants;

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3. allowing a friend, representative, advocate, counsel or attorney to attend the mediation sessions;

4. encouraging the participants to be represented by an attorney, counsel or an advocate throughout the mediation process;

5. referring the participants to appropriate community resources;

6. suspending or terminating the mediation sessions, with appropriate steps to protect the safety of the participants.

E. The mediator should facilitate the participants’ formulation of parenting plans that protect

the physical safety and psychological well-being of themselves and their children.

Standard XI

A family mediator shall suspend or terminate the mediation process when the mediator

reasonably believes that a participant is unable to effectively participate or for other

compelling reasons.

A. Circumstances under which a mediator should consider suspending or terminating the mediation, may include, among others:

1. the safety of a participant or well-being of a child is threatened;

2. a participant has or is threatening to abduct a child;

3. a participant is unable to participate due to the influence of drugs, alcohol, or physical or mental condition;

4. the participants are about to enter into an agreement that the mediator reasonably believes to be unconscionable;

5. a participant is using the mediation to further illegal conduct;

6. a participant is using the mediation process to gain an unfair advantage;

7. if the mediator believes the mediator’s impartiality has been compromised in accordance with Standard IV.

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B. If the mediator does suspend or terminate the mediation, the mediator should take all

reasonable steps to minimize prejudice or inconvenience to the participants which may

result.

Standard XII

A family mediator shall be truthful in the advertisement and solicitation for mediation.

A. Mediators should refrain from promises and guarantees of results. A mediator should not advertise statistical settlement data or settlement rates.

B. Mediators should accurately represent their qualifications. In an advertisement or other communication, a mediator may make reference to meeting state, national, or private organizational qualifications only if the entity referred to has a procedure for qualifying mediators and the mediator has been duly granted the requisite status.

Standard XIII

A family mediator shall acquire and maintain professional competence in mediation.

A. Mediators should continuously improve their professional skills and abilities by, among other activities, participating in relevant continuing education programs and should regularly engage in self-assessment.

B. Mediators should participate in programs of peer consultation and should help train and mentor the work of less experienced mediators.

C. Mediators should continuously strive to understand the impact of culture and diversity on the mediator’s practice.

Appendix: Special Policy Considerations for State Regulation of Family Mediators and

Court Affiliated Programs

The Model Standards recognize the National Standards for Court Connected Dispute Resolution

Programs (1992). There are also state and local regulations governing such programs and family

mediators. The following principles of organization and practice, however, are especially

important for regulation of mediators and court-connected family mediation programs. They are

worthy of separate mention.

A. Individual states or local courts should set standards and qualifications for family mediators including procedures for evaluations and handling grievances against mediators. In developing these standards and qualifications, regulators should consult with appropriate professional groups, including professional associations of family mediators.

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B. When family mediators are appointed by a court or other institution, the appointing agency should make reasonable efforts to insure that each mediator is qualified for the appointment. If a list of family mediators qualified for court appointment exists, the requirements for being included on the list should be made public and available to all interested persons.

C. Confidentiality should not be construed to limit or prohibit the effective monitoring, research, evaluation or monitoring of mediation programs by responsible individuals or academic institutions provided that no identifying information about any person involved in the mediation is disclosed without their prior written consent. Under appropriate circumstances, researchers may be permitted to obtain access to statistical data and, with the permission of the participants, to individual case files, observations of live mediations, and interviews with participants.

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ETHICAL ISSUES IN SETTLEMENT NEGOTIATIONS

BRUCE HECTORNYC BAR JUNE 21, 2016

RESOURCES

ABA Model Rules of Professional Conduct

State Rules of Professional Conduct

Ethical Guidelines for SettlementEthical Guidelines for Settlement Negotiations

ABA Section of Litigation (2002) [“EGSN”]

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SOME ETHICS ISSUES• Candor• Is your adversary communicating

settlement offers to her client?• What if your adversary makes a mistake

of law or fact?A t t i i f t ti• Agreements constraining future practice

• Applying pressure to the other side

CANDOR

Rule 4.1 – It is an ethical violation for a lawyer to ymake a “material” misstatement of law and fact by:• Consciously making a false, or half-true but

misleading, statement;• Retelling or confirming someone else’s

f l h dfalsehood; or• Silence under certain circumstances.Not meant to apply to “puffery”.

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PUFFERY?

ffPuffery – n.

“…a promotional statement or claim that expresses subjective rather than objective views which no ‘reasonable person’ would take literally.” - FTC

SOME FAVORITES…

“There’s no way we could resolve this case“There’s no way we could resolve this case for (less/more) than $X!”“We’re ready to go to trial tomorrow!”“No – your client owes US money!”“We’re very confident that this would be aWe re very confident that this would be a slam dunk win at trial.”

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SITUATION #1Your client, Bob’s Bobbleheads, has a supply contract with the Detroit Tigers but has been offered a tremendousthe Detroit Tigers, but has been offered a tremendous opportunity to supply bobbleheads to the New York Yankees. Unfortunately, the company would have to devote all of its manufacturing capacity to the Yankee contract, (which, needless to say, is larger than the Tigers order), so there would not be enough capacity to supply both teams. Accordingly, your client has already advised the Tigers that they will not be getting any more product, and the Tigers, who so far have not been told anything else, have sued for breach of contract. The Tigers’ counsel have invited you and your client to a meeting to see if settlement is possible.

POSSIBLE STATEMENTS

“Bob’s Bobbleheads will not be Bob s Bobbleheads will not be performing the contract.”

“Bob’s Bobbleheads is unfortunately unable to perform the contract.”

“Bob’s Bobbleheads cannot perform the t t b th l t bl ”contract because the plant blew up.”

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WHAT IF…?After you only tell them that your client will not be performing the contract Bob blurts out “the plant blew up!”the contract, Bob blurts out, the plant blew up!

If you remain silent, are you violating Rule 4.1 about candor, or does Rule 1.6 (Client Confidentiality) prevail?

Or what if Bob instructs you to say that the plant blew up?

Is it subject to Rule 1.2(d), which says that a lawyer can’t assist a client to perpetrate a fraud, OR Rule 1.16 (b), which says that if instructed by a client to use a tactic thewhich says that if instructed by a client to use a tactic the lawyer finds repugnant, the lawyer may withdraw, but only if they give the client the choice of not complying with their instruction and continuing, or withdrawing.

SITUATION #2You represent an airbag manufacturer in mass tort litigation involving a number of different wrongful death lawsuits Theinvolving a number of different wrongful death lawsuits. The first lawsuit was filed in Texas by an A-List plaintiff’s lawyer, and you have scheduled a meeting to see if you can settle the case. When you get to plaintiff’s counsel’s office with your client, you are disappointed to see that the plaintiff is not present, but her counsel says that he has authority from his client. Wrongful death cases in the county where the suit was filed typically settle for around $1 million. After several hours of negotiation, you offer $750,000. Plaintiff’s counsel leaves the room for 10 minutes, comes back and says, “Boys, if that’s the best you can do, send it to your favorite charity. We’re not gonna dignify that with a counter. Thanks for stopping by.”

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YOU’RE SUSPICIOUS…

• Rule 1 2(a) provides that the client not theRule 1.2(a) provides that the client, not the lawyer, has ultimate decision making authority, including settlement

• Rule 1.4 says that a lawyer must timely advise the client of settlement negotiations, including offers (EGSN 3.1.4), BUT

• Rule 4.2 provides that a lawyer cannot contact an opposing party directly where they are represented by counsel

WHAT CAN YOU DO? While you can’t contact the plaintiff directly, it is

i bl t h li t h t tpermissable to have your client reach out to them directly (so long as your client is not an attorney themselves).- ABA Ethics Committee Formal Opinion 92-362 (1992)

I N Y k d th t l In New York you can do that so long as you advise opposing counsel of your client’s intent.- NY CPR DR7-104(B)

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SITUATION #3

f ffYour client does in fact reach out to the plaintiff, and the parties agree to settle the case for $750,000. Plaintiff’s counsel offers to draft the settlement agreement. Several days later, you receive the draft agreement and everything seems to be in order, except that in the paragraph relating to the settlement amount it says $705 000 notto the settlement amount it says $705,000, not $750,000.

WHAT SHOULD YOU DO?• The EGSN, while not having the impact of an actual Rule,

provides that lawyers should always act with fairness andprovides that lawyers should always act with fairness and in a way which would pass the “red face” test

• In an Informal Opinion, the ABA indicated that the lawyer benefitted should reach out and advise opposing counsel

- ABA Informal Opinion 86-1518 (1986)

• In New York, the lawyer should urge the client to advise the other side, but can do it themselves if the clientthe other side, but can do it themselves if the client refuses

- New York City Ethics Opinion 477 (1939)

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SITUATION #4

Your client tells you, “this lawyer is trying to make these case into a cottage industry, and he’s good at it. I’m willing to sweeten the offer if we can make him go away, and not file any more of these. Ask him what it will take.”

IS THAT OKAY?In a word – no! Rule 5.6(b) says that it is inpermissable to enter

into an agreement restricting a lawyer’s future right to practice. - ABA Formal Opinion 93-371

This would include hiring the attorney as a “ lt t” i d t fli t th t f“consultant” in order to conflict them out of future plaintiff’s cases, - EGSN 4.2.1

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SITUATION #5

Being ignorant of this rule, you make the pitch to plaintff’s counsel, who grins and say, “Son, you know what would happen to you if I told your ethics committee about what you just offered? I’m thinking that I might just have to do that unless you upped your settlement offer considerably.”

CAN HE THREATEN THAT?This is potentially dangerous ground, because:

Rule 8.3 (a) discusses a lawyer’s obligation to report a “substantial” violation of ethics, SO

If it IS a “substantial” violation, it would be unethical for plaintiff’s counsel NOT to report it. EGSN 4.2.3

To apply pressure through such a threat, you need to be sure that the violation is not “substantial”. That’s a big gamble given the consequences if you’re wronggamble given the consequences if you re wrong

Different states’ ethics codes may vary slightly in this area regarding “shall” versus “may” report

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THANK YOUThe ABA EGSN can be found online, and for real world situations you should consult the RPC of your particularsituations you should consult the RPC of your particular State. Thanks for your time, and be careful out there!

You can reach me at bhector1@optonline.net

84

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Mandatory CLE Information

The City Bar Center for CLE is an accredited CLE provider in the States of New York, California, New Jersey and Pennsylvania. For Pennsylvania credits differ slightly as they are based on a 60 minute hour.

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Pennsylvania: Sign-in and out on the New York sign-in sheet at the registration desk and include your Pennsylvania Bar number in the appropriate column. When you sign-out, please make sure to hand-in your completed evaluation form. As Pennsylvania is a paperless State we will not provide you with a CLE certificate. You can get proof of attendance by logging onto www.asapnexus.org at least 30 days after the date of the program. For more information call 717.231.3230 or visit their website, www.pacle.org.

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