June 13, 2024
Mediators are bound by certain ethical rules and best practices to follow when refereeing a dispute. Mediators will likely have varying levels of training on the ethical rules that bind them as a neutral. Unprofessional conduct by mediators can take many forms, either during the joint session or behind the scenes during separate caucuses. This article outlines some of the ethical rules that apply to mediators, and also presents solutions for parties who may feel the conduct of a mediator has improperly impacted the mediation.
Mediators are required to act with patience, courtesy, and impartiality towards all parties, and to maintain a fair process that ensures confidential and autonomous decision making for all parties to the mediation. This standard of conduct is consistent between the American Bar Association (ABA), JAMS, the American Arbitration Association (AAA), and the Association for Conflict Resolution.
To read more about the ethical code adopted by the ABA and AAA, click here [1].
To read more about the ethical code adopted by JAMS, click here [2].
To read more about the ethical code adopted by the Association for Conflict Resolution, click here [3].
These rules may vary, however, based on the jurisdiction and law governing the mediation, as many states, state bar associations, and court systems have adopted their own ethical specific standards. This is particularly the case if the matter was referred to mediation in connection with a pending court proceeding. For instance, New York State courts have a cohesive standard of conduct [4] for mediators employed by the state itself, and the Southern District of New York allows any party to submit a written request [5] to the Director of the ADR program to dismiss the mediator for unethical conduct.
The overarching duty is for a mediator to remain neutral and avoid favoring one side of the mediation. A mediator must avoid potential bias based on their own pre-existing knowledge or opinions about the subject of the dispute or based on the personal attributes or conduct of the mediating parties. A mediator must not violate the confidentiality of the parties. For instance, a mediator cannot discuss what is happening in the proceeding with a judge or other colleague. Generally, it is acceptable to ask a mediator for a proposal, but the mediator should not unduly foist such a proposal on one of the parties for the benefit of the other.
Examples of mediator conduct that may not comply with the standard of patience, courtesy, impartiality, and confidentiality include:
- Any form of conduct that shows bias (acting over friendly to only one party, ignoring an argument, acting condescendingly).
- Giving legal guidance to one party.
- Being overly aggressive in pushing one of the parties to settle.
Here are some precautions and possible solutions to prevent or deal with mediator bias or misconduct:
- Before the mediation, ensure that you have confirmed that the mediator does not have any conflict of interest, determine whether the mediator has been involved in similar situations or whether the mediator has any direct or indirect stake in the outcome of the mediation, and determine whether the mediator has a prior relationship with any of the parties or counsel.
- Counsel may need to engage in a private conversation with the mediator to explain how the mediator’s conduct may be unfairly impacting the proceeding.
- In egregious cases, depending on the jurisdiction, a party may have the unilateral right to adjourn the mediation or request a new mediator before proceeding further with the mediation.
- If the mediator has acted unethically, it may be necessary to report the mediator’s conduct the administrative organization that was contracted to provide the mediator.
To read how CASTAYBERT PLLC can assist you with mediation matters, click here [6].