Can We Think of Universal Guides for the Conduct of Mediators?

Tania Almeida
Consultant, Teacher and Supervisor in Conflict Mediation. Founding Partner and President-Director of MEDIARE – Dialogues and Decision-Making Processes . Member of the Ethics Committee and Vice-Presidency of CONIMA – National Council of Mediation and Arbitration Institutions.

Brazil moves to include Mediation in its culture. It multiplies the centers and chambers dedicated to it, proposes the vote on a text of law, invites professionals from different areas of activity to be trained for its exercise, establishes partnerships with international institutions in search of inaugurating and expanding programs that disseminate the its practice and its benefits.

Respecting the local languages ​​and idiosyncrasies of each culture, could we think of universal guidelines for the conduct of mediators? In a country of continental dimensions like ours and a future member of the universal community that practices Mediation on a large scale, would this be a pertinent care and a good preventive attitude to enable ethical uniformity to this practice? 

This is a movement that has been uniting North American entities representing the practice of Mediation. The Model Standards of Conduct for Mediators was prepared in 1994 by the American Arbitration Association, the American Bar Association Dispute Resolution Section, and the Association for Conflict Resolution. Committees with representatives from each of the three organizations have periodically reviewed the document.

These guides were created to serve as ethical guides for mediators in all contexts of practice. They serve three primary purposes: to guide the conduct of mediators, to inform mediated parties, and to promote public trust in Mediation as a dispute resolution process.

We present in this article part of the review of these guidelines approved in 2005. They are accompanied by a synthesis of explanation, so that we can reflect and build our own parameters from the learning of those who practice Mediation since it was considered as a procedural resource for conflict resolution .

 

Autonomy of Will

  • the mediator must conduct a Mediation based on the principle of autonomy of will. The parties may exercise their right to free choice at any stage of the Mediation, including choosing the mediator, defining the procedures, participating in or withdrawing from the Mediation and, especially, in relation to the resulting results.

 

The Impartiality

  • the mediator shall refuse to participate in a Mediation when he is unable to conduct it impartially. He shall avoid any conduct that might suggest partiality.

 

Conflicts of Interest

  • the mediator must avoid conflicts of interest or conduct that may suggest them, during and after the Mediation. It should expose, as soon as possible, all conflicts of interest, existing or potential, that are identified.

 

Competence

  • the mediator should mediate only when he has the necessary competence to satisfy the plausible expectations of the parties. Training, experience with Mediation, skills, understanding of cultural differences and other qualities are necessary skills for a mediator

 

Confidentiality

  • the mediator shall maintain the confidentiality of all information obtained during the Mediation, in joint or private sessions, unless otherwise agreed by the parties or established by law.

 

Process Quality

  • the mediator must conduct the Mediation in a way that encourages diligent, timely, safe actions that promote proper participation of the parties, fair procedures and mutual respect among all participants.

 

Advertising and Promotion

  • The mediator must be truthful and objective when advertising, promoting, or reporting on his or her qualifications, experience, services, and fees. He will not be able to communicate to third parties, in promotional material or any other forms of communication, the names of the people to whom he has provided Mediation services without their consent.

 

Fees and Other Charges

  • The mediator shall provide both parties or the representative with the same true and complete information about his/her fees, costs and any other charges, actual or potential, that may occur in the course of the Mediation. He shall not charge fees in such a way as to impair his impartiality or agree fees that are conditional on the outcome of the mediation or the amount of the final settlement.

 

Development of the Practice of Mediation

  • The mediator must take a proactive stance towards the practice of Mediation. He will contribute to this objective when, for example, he participates in the education of the population to help them better understand and recognize the value of Mediation.

 

The invitation to consider universal ethical guidelines for the practice of Mediation comes especially from its transdisciplinary character. It transcends Law and Psychology, especially, and is built thanks to the contribution of many other knowledge - Philosophy, Sociology, Anthropology, Theories about Human Communication and about Negotiation. Due to its transdisciplinary nature and its coherent non-restriction to the profession of origin of its practitioners, the mediators, it is worth identifying ethical guides unified by their principles, norms and values. Principles, norms and values ​​that motivate, discipline and guide its practice and its practitioners.