Code of Ethics for Mediators
MEDIARE applies the guidelines approved by CONIMA – National Council of Mediation and Arbitration Institutions.
In Brazil, Mediation’s credibility as an effective ADR mechanism, is directly associated to the respect that the Mediators has conquered, through a high-quality technical work, based on strict ethical principles.
Mediation transcends controversy solutions as it attempts to transform an adversarial context in a non-adversarial one. It is a confidential, voluntary and non-binding process, through which each party is encouraged to take responsibility for resolving the dispute, sense in which differs from Negotiation, Conciliation and Arbitration.
The Mediator is a neutral third party who helps the participants involved, by facilitating communication, promoting understanding and assisting them in identifying and exploring issues, interests and possible bases for a consensual-built agreement; always preserving the chamber`s ethical standards.
Since Mediation has its own techniques, its practice requires specific training and knowledge. Therefore, to become a Mediator, one shall qualify and seek improvement, increasing continually its professional abilities. In this sense, shall preserve Mediation by respecting its ethical standards.
When participating in public declarations and promotional activities, the Mediator shall be restricted to matters that clarify and inform the public through easy-understanding messages.
Often, other codes of ethics are applied to Mediators (Attorneys, Therapists, Accountants, among others). MEDIARE applies the guidelines approved by CONIMA – National Council of Mediation and Arbitration Institutions, which adds specific criteria that shall be observed by professionals during Mediation.
I. Free Will of the Parties
The Mediator shall observe that Mediation is based on the free will of the parties and, thus, their activities shall be focused on such assumption.
The voluntary basis of the Mediation process guarantees the parties, the free choice of whether to settle in mediation; to administrate the procedure as well as the right to reach a voluntary consensual agreement.
II. Fundamental principles
The Mediator shall act with Impartiality, Independence, Credibility, Competence, Diligence and Confidentiality.
Impartiality – It’s a Mediator`s essential condition; Implies that there shall not be any kind of conflict of interests or relationship able to affect the procedure. The Mediator shall seek to understand the parties` reality, without letting any personal values or belief system, interfere in their work.
Credibility – Mediator shall maintain credibility among the parties by being honest, independent and coherent.
Competence – Refers to the ability to effectively mediate the existent controversy. Therefore, a Mediator shall only accept its duty when having the required qualifications in order meet the parties’ expectations.
Confidentiality – All aspects of the Mediation procedure are confidential. All participants are obliged to keep confidential everything that transpires during a Mediation which shall not be used by either party or any other person in the advent of litigation, as legally provided; always respecting the free will of the parties, under the terms stipulated by them, since in accordance to public order.
Diligence – Care and caution in observing regularly and securing the procedure`s quality while respecting its fundamental principles.
III. Mediators and their Appointment:
- Mediators shall accept the responsibility if they are convinced that they can fulfill their task with skill, speed, impartiality and independence.
- Mediators shall disclose to the parties, in view of their appointment, any interest or (business, professional or social) relationship that they may have or have had with any of them likely to affect their impartiality and independence or their image derived from such factors, so that the parties may decide if they wish to continue.
- The Mediator shall judge upon what procedure best fits the case.
- When the mediator accepts the incumbency, he/her will be subjected to the agreed terms.
IV. Mediators and their Conduct Before the Parties:
The choice of a Mediator entails a personal relationship of trust, which shall not be transferable, unless upon a fair reason and with the parties` express consent. Before the parties, the Mediators shall:
- Ensure the parties the opportunity of understanding the procedure as well as all implications regarding each item agreed during the pre-sessions and the mediation process; guiding them into making informed decisions;
- Offer clarified information regarding mediators` fees, costs and payment forms;
- Be careful and truthful and refrain from making promises and guarantees regarding the results;
- If necessary, to hold a private session with a party, inform and offer equal opportunity to the other party;
- By the end of a private session, clarify with the party involved, which subjects are confidential, and which may be disclosed and discussed with the other party;
- Balance the procedure by assuring the parties equal voice and legitimacy during mediation;
- Grant the parties enough information for them to be able to make informed decisions;
- Recommend a legal review of the final agreement before the signing;
- Not undermine the parties’ self-determination by deciding or giving opinion on facts or legal issues in the conflict.
- Not act in any capacity for any of the parties in connection with the conflict, which is the subject of mediation.
V. Mediators and their Conduct Before the Procedure:
The Mediator shall:
- Explain to the parties the nature of the mediation process and the role of the Mediator and the parties within it;
- Inform the parties about confidentiality during a mediation procedure;
- Ensure quality by using techniques to achieve Mediation’s goals;
- Maintain the reasonable expectations of the parties regarding confidentiality by cherishing it through all the procedure, including after the termination;
- Encourage the participation of specialists, in order to maintain equality, when clarifications are needed;
- Suspend the procedure if becomes aware of any ethical or legal hindrance;
- Terminate the mediation if considers that any of the parties are endangered or when the parties request it;
- Grant the parties, the conclusions regarding the procedure, when asked for.
VI. Mediators and their conduct before MEDIARE:
The Mediator shall:
- Work for the good quality of services provided by MEDIARE;
- Comply with the qualification standards required by MEDIARE;
- Accept the institutional and ethical rules of the mediation;
- Uphold and abide by this Code of Ethics, informing MEDIARE of any violation of its rules.