INTRODUCTION The purpose of these Ethics Guidelines is to provide basic guidance to JAMS mediators regarding ethical issues that may arise during or related to the mediation process. Mediation is a voluntary, non-binding process using a neutral third party to help the parties reach a mutually beneficial resolution of their dispute. A mediator helps the parties reach a resolution by facilitating communication, promoting understanding, assisting them in identifying and exploring issues, interests and possible bases for agreement, and in some matters, helping parties evaluate the likely outcome in court or arbitration if they cannot reach settlement through mediation. Mediation is by its nature a fluid and flexible process. JAMS mediators are not expected to adhere to any one process or approach, and are encouraged to rely on their creativity and experience to tailor each mediation as much as appropriate to meet the needs of the participants.
Many other sets of guidelines exist, such as those issued by the Society of Professionals in Dispute Resolution (SPIDR), The Joint AAA/ABA/SPIDR Committee on Standards of Conduct, the ABA Family Law Section and various state and local programs. JAMS mediators may wish to review these for informational purposes. Copies of each, as well as other relevant reference materials, are kept in each JAMS office. These Guidelines are national in scope and are necessarily general. They are not intended to supplant applicable state or local laws or rules. All JAMS mediators should be aware of applicable state statutes or court rules that may apply to the mediations they are conducting. In the event that these Guidelines are inconsistent with such statutes or rules, the mediators must comply with the applicable law. Attorney mediators in particular should also be aware of state-specific rulings or guidance as to whether and in what circumstances mediation may be considered the practice of law.
These rulings may have an impact on a mediator’s practice in such respects as advertising and co-mediating with non-attorneys. In addition, mediators who are former judges should be aware of any state ethical standards or canons of judicial conduct regulating or guiding their efforts as mediators. Other professionals, such as licensed psychologists, also may have similar standards of conduct that may affect their mediation practice.;JAMS strongly encourages its mediators to confront directly any ethical issues that arise in their cases as soon as the issue becomes apparent, and to seek advice on how to resolve such issues from the Regional Management Team.
;Return to TopGUIDELINES;I. A MEDIATOR SHOULD ENSURE THAT ALL PARTIES ARE INFORMED ABOUT THE MEDIATOR’S ROLE AND NATURE OF THE MEDIATION PROCESS, AND THAT ALL PARTIES UNDERSTAND THE TERMS OF SETTLEMENT. A mediator should ensure that all parties understand and agree to mediation as a process, the mediator’s role in that process and all parties’ relationship to the mediator. The parties should also understand the particular procedures the mediator intends to employ, including whether and in what manner the mediator may help the parties evaluate the likely outcome of the dispute in court or arbitration if they cannot reach settlement through mediation. In addition, a mediator should be satisfied that the parties have considered and understood the terms of any settlement, and should, if appropriate, advise the parties to seek legal or other specialized advice.
If the mediator perceives that a party is unable to give informed consent to participation in the process or to the terms of settlement due to, for example, the impact of a physical or mental impairment, the process should not continue until the mediator is satisfied that such informed consent has been obtained from the party or the party’s duly authorized representative.;In the event that, prior to or during a mediation session, it becomes appropriate to discuss the possibility of combining mediation with binding arbitration, the mediator should explain how a mediator’s role and relationship to the parties may be altered, as well as the impact such a shift may have on the disclosure of information to the mediator. The parties should be given the opportunity to select another neutral to conduct the arbitration procedure.
II. A MEDIATOR SHOULD PROTECT THE VOLUNTARY PARTICIPATION OF EACH PARTY. The right of the parties to reach a voluntary agreement is central to the mediation process. Consequently, a mediator should act and conduct the process in ways that maximize its voluntariness. In most cases that are not court-ordered, parties to the mediation process arrive willing and able to engage in assisted negotiation. On infrequent occasions, however, a mediator may perceive that a party is being forced into and/or through the process, for example, by a family member or representative.
In that event, a mediator should explore carefully with that party and the other parties, within the bounds of discretion and confidentiality, whether the mediation process should proceed, and, in any case, strive to ensure that the concerns of the reluctant party regarding the process are fully addressed. Court-ordered mediation often carries an aspect of involuntariness into the process. A mediator should be sensitive to this dynamic and assure the parties that although they have been ordered to attend the mediation, a settlement can be reached only if it is to their mutual satisfaction. III. A MEDIATOR SHOULD BE COMPETENT TO MEDIATE THE PARTICULAR MATTER.
A mediator should have sufficient knowledge of relevant procedural and substantive issues to be effective. It is the mediator’s responsibility to prepare before the mediation session by reviewing any statements or documents submitted by the parties. A mediator should refuse to serve or withdraw from the mediation if the mediator becomes physically or mentally unable to meet the reasonable expectations of the parties.;IV. A MEDIATOR SHOULD MAINTAIN THE CONFIDENTIALITY OF THE PROCESS.
;It is crucial that the mediator and all parties have a clear understanding as to confidentiality before the mediation begins. Before a mediation session begins, a mediator should explain to all parties (a) any applicable laws, rules or agreements prohibiting disclosure in subsequent legal proceedings of offers and statements made and documents produced during the session, and (b) the mediator’s role in maintaining confidences within the mediation and as to third parties. A mediator should not disclose confidential information without permission of all parties or unless required by law, court rule or other legal authority. A mediator must not use confidential information acquired during the mediation to gain personal advantage or advantage for others, or to affect adversely the interests of others. If the mediation is being conducted under rules or laws that require disclosure of certain information, a mediator should so notify the parties prior to beginning the mediation session.
In addition, a mediator’s notes, the parties’ submissions and other documents containing confidential or otherwise sensitive information should be stored in a reasonably secure location and may be destroyed 90 days after the mediation has been completed or sooner if all parties so request or consent. V. A MEDIATOR SHOULD CONDUCT THE PROCESS IMPARTIALLY. A mediator should remain impartial throughout the course of the mediation. A mediator should be aware of and avoid the potential for bias based on the parties’ backgrounds, personal attributes, or conduct during the session, or based on any pre-existing knowledge of or opinion about the merits of the dispute being mediated.
A mediator should endeavor to provide a procedurally fair process in which each party is given an adequate opportunity to participate. If a mediator becomes incapable of maintaining impartiality, the mediator should withdraw promptly.;A mediator should disclose any information that reasonably could lead a party to question the mediator’s impartiality. A mediator may proceed with the process unless a party objects to continuing service. A mediator should withdraw if a conflict of interest exists that casts serious doubt on the integrity of the process.
After a mediation is completed, a mediator should refrain from any conduct involving a party, insurer or counsel to the mediation that reasonably would cast doubt on the integrity of the mediation process, absent disclosure to and consent by all parties to the mediation. This does not preclude the mediator from serving as a mediator or in another dispute resolution capacity with a party, insurer or counsel involved in the prior mediation. A mediator should exercise caution in accepting items of value, including gifts or payments for meals, from a party, insurer or counsel to a mediation during or after a mediation, particularly if the items are accepted at such a time and in such a manner as to cast doubt on the integrity of the mediation process. A mediator should also avoid conflicts of interest in recommending the services of other professionals. If a mediator is unable to make a personal recommendation without creating a potential or actual conflict of interest, the mediator should so advise the parties and refer them to a professional referral service or association.
The JAMS Conflict Of Interest Policy provides additional information regarding restricted conduct and should be adhered to by a JAMS mediator. VI. A MEDIATOR SHOULD REFRAIN FROM PROVIDING LEGAL ADVICE.
A mediator should ensure that the parties understand that the mediator’s role is that of neutral intermediary, not that of representative of or advocate for any party. A mediator should not offer legal advice to a party. If a mediator offers an evaluation of a party’s position or of the likely outcome in court or arbitration, or offers a recommendation with regard to settlement, the mediator should ensure that the parties understand that the mediator is not acting as an attorney for any party and is not providing legal advice. A mediator should be particularly sensitive to role differences if any party is unrepresented by counsel at the mediation, and should explain carefully the limitations of the mediator’s role and obtain a written waiver of representation from each unrepresented party. If a mediator assists in the preparation of a settlement agreement and if counsel for any party is not present, the mediator should advise each unrepresented party to have the agreement independently reviewed by counsel prior to executing it.
;A mediator should make an effort to keep abreast of developments within the mediator’s jurisdiction concerning what constitutes the practice of law. Different bar associations have issued conflicting opinions about whether and when a mediator engages in the practice of law, and certain states or courts have rules regarding how and in what manner a mediator may evaluate the merits of a dispute. VII. A MEDIATOR SHOULD WITHDRAW UNDER CERTAIN CIRCUMSTANCES. A mediator should withdraw from the process if the mediation is being used to further illegal conduct, or for any of the reasons set forth above: lack of informed consent, a conflict of interest that has not or cannot be waived, a mediator’s inability to remain impartial, or a mediator’s physical or mental disability. In addition, a mediator should be aware of the potential need to withdraw from the case if procedural or substantive unfairness appears to have undermined the integrity of the mediation process. VIII. A MEDIATOR SHOULD AVOID MARKETING THAT IS MISLEADING AND SHOULD NOT GUARANTEE RESULTS.
A mediator should ensure that any advertising or other marketing conducted on the mediator’s behalf is truthful. A mediator should not guarantee results, especially if such guarantee could be perceived as favoring one type of disputant or industry over another.;–;http://www.mediate.com/articles/pageLehman.cfm;Copyright 1996-2007 © Resourceful Internet Solutions, Inc.
;Lehman, P. ; Page, N. R. (2007).
Enhancing Mediator Neutrality Through Question-Asking. Resourceful Internet Solutions, Inc. Retrieved October 3, 2007, from http://www.
mediate.com/articles/pageLehman.cfm;;;;Enhancing Mediator Neutrality Through Question-Askingby Pamela Lehman, Norman R. Page;September 2007;-Print-Email-Comment-Subscribe (free)Neutrality is the sine qua non of the mediator’s role; it provides the stable platform on which the parties can build a resolution to their conflict. Without it, the process lacks the trust necessary to foster compromise and good will.Yet how is neutrality defined? Different sources provide different perspectives. Webster defines neutrality as “not allied with, not supporting, or favoring either side in a dispute” (Webster’s II New College Dictionary, 2001).
Christopher Moore (2003) adds that although the mediator has a vested interest in a fair process, there should be no interest whatsoever in the ultimate outcome (Moore, 2003).;Because neutrality is so vital to the mediation process, mediators should strive to use every method possible to enhance it. Mediators must apply their communication skills to engage the parties equally. These skills include nonverbal communication (e.g., equal eye contact and sitting an equal distance from each party) and verbal communication, making overt claims of neutrality using credentials and metaphors. A helpful metaphor would be, “I am on a balance beam and if I lean one way or the other, I’ll fall.
” In addition, involving a co-mediator can increase the perception of neutrality and help limit concerns of gender or racial bias. Finally, and perhaps most importantly, the mediator must avoid offering information or opinions related to the content of the dispute. Neutrality can be enhanced through question-asking.;Asking questions;Assuming the mediator’s role is to facilitate a negotiation, then the agreement should come from the parties themselves and not the mediator. One technique that can enhance the mediator’s neutrality is skilled questioning.
Question-asking can be used to elicit the crucial facts of the case, uncover emotional currents, and clarify the conflict’s narrative. When used properly it can also increase the chances for a satisfactory outcome. Question-asking is an established practice in many fields.
Psychologists, for example, use skilled questioning to assist clients to better understand their subjective emotional state. In the legal arena, questioning is used by attorneys for fact-finding from witnesses. In the medical field, careful questioning of patients helps elicit important information on which to base healthcare decisions, to establish trust between practitioner and patient, and even to reduce the likelihood of malpractice suits (Evans, Tulsky, Back, & Arnold, 2006; Coulehan & Block, 2006). It therefore makes sense to apply this critical skill to mediation. The mediator can use question-asking to help parties express facts and feelings regarding the dispute. Appropriate questioning can follow the format of interviewing which contains four basic question types: open, closed, probing, and leading. Open questions Open-ended questions are broad and have few restrictions on the recipient’s choice of responses (“What is your view of this conflict?” or “How do you visualize the outcome of this case?”). Open questions allow a party to communicate his or her perception of the situation.
A subjective description is invited because there is no preconceived framework to consider (Moore, 2003).;Open questions can have two major impacts on the process. They can encourage the parties to engage the conflict and can empower the parties to craft their own unique solutions. These types of questions are considered appropriate or “process enhancing” because they encourage the parties to open up, express the facts of the conflict, and articulate their feelings. For example, the mediator might ask a terminated employee, “Can you tell us what you felt when your employer told you he was firing you?” This allows the aggrieved party to express his or her emotions and creates the opportunity to feel heard (Bennett ; Hermann, 1996).;Sometimes in replying to open questions, the party (possibly for the first time) is able to express his or her emotions regarding the conflict.
How the response is received is also important, e.g. an emotional outburst at the beginning of mediation can relieve emotional tension and spur the parties forward, yet the same outburst toward the end might spark an impasse.
In practice, using broader questions at the beginning of mediation encourages constructive venting to occur in a timely way, just as narrowing the questions during the final stages can minimize the likelihood of a destructive outburst.;Closed questions;Once the basic information has been expressed, the mediator can begin to use closed questions to narrow the scope of the responses. Closed questions can be answered with yes or no, or in a very few words (“Did your employer state the reason that you were being laid off?”). The mediator can also use closed questions to regain control over the process. For example, the mediator politely interrupts and asks the party a closed question; following a brief reply, it again becomes the mediator’s turn to speak and move the negotiation to a different topic. Probing questions To further encourage a party to provide specifics, the mediator can use probing questions to uncover important feelings and information. Probing questions use such words as why and how so. This type of questioning encourages the speaker to provide in-depth responses to information that has already been provided (“Did you realize they were concerned with your job performance? How so?”).
Leading questions Finally, leading questions might be used to move the mediation in a positive direction. Leading questions are ones in which the question suggests the answer (“If your employer had expressed dissatisfaction with your performance, wouldn’t you have requested additional training?”). The mediator must be cautious about injecting his or her opinions regarding the conflict through leading questions and, as such, they should be used strictly to facilitate the process. Of the four question types, this one is the least used and should probably be limited to caucus situations. For example, “You want to make things right, don’t you?” As applied to the mediation context, progressing from open through closed questions allows the mediator to manage the process.
For example, should one party demonstrate a sense of entitlement causing the mediation to lurch toward an impasse, the mediator’s questioning technique might follow this sequence: Open question: “John, how would you describe your marriage?” John may respond, “Things are fine as long as I have the say-so”. The mediator then proceeds with a probing question: “How do you think Maria feels about your attempts to control her?” The mediator can search for additional information by asking a closed question, “Was there a time when Maria wasn’t okay with it?” or a leading question, “Do you think your outbursts might be frightening to her?” This type of question can affirm a party’s position while encouraging the party to consider a different and more productive approach. Some applications As seen in the following examples, mediation functions can be readily accomplished by asking questions.
Promote empathy. “John, can you put yourself in Mary’s shoes? How does she feel?” [open question]Promote creativity. “If you were to think out of the box on this issue, how would you respond?” [open question]Appeal to a party’s self-interests. (in caucus), “What will happen to you if this negotiation fails?” [open question]Seek information. “How long has this conflict been going on?” [closed question]Separate issues.
“Are you willing to do a little horse-trading based on what’s been said?” [closed question]Invite initial interaction. “Having described the conflict, why do you feel it goes counter to your values?” [probing question]Probe issues. “Can you tell me how you feel about this issue?” [probing question]Promote responsibility. (in caucus), “You do accept some responsibility for this situation, don’t you?” [leading question]Invite movement. (in caucus), “Why don’t you throw him a bone?” [leading question]Precautions Alternatively, poor questioning techniques can discourage agreement by putting the parties on the defensive or ignoring unspoken needs (“How could you make such a ridiculous offer?”) (Bennett & Hermann, 1996).
The mediator must always be aware of the impact his or her questions will have on the parties and be prepared to handle the responses (Bennett & Hermann, 1996). By avoiding biased or judgmental questions, the mediator can maintain neutrality and the integrity of the process. Another type of question, the loaded question, is inappropriate for mediation.
Loaded questions express an opinion of the interviewer such that no matter how it is answered, the respondent loses face (“To what defect of your personality do you attribute this error?”). Again, because loaded questions can be sarcastic and have the potential to undermine the mediator’s neutrality, they should be avoided. Similarly, the mediator should not allow the parties to bicker with each other using loaded questions.
;Another potential trap occurs when the mediator has a background in a professional field (e.g., medical, construction, real estate) and may feel that his or her background knowledge would help to move things along. A mediator’s expertise in a relevant content area should serve to make the mediator a more informed listener and aid in formulating insightful questions, but not to add opinions or factual information. For instance, a mediator with a medical background may erroneously offer a comment such as, “I have a medical degree, and I can see that this bone was set using the pin and screw method which is considered acceptable medical practice.” This type of input could negatively impact the parties’ perception of the mediator’s neutrality. To be safe, the mediator should restrict his or her expertise to the mediation process by asking questions and refrain from expressing facts and opinions regarding the content of the dispute.
Of course, the mediator is not restricted to question asking; it is the authors’ view, however, that making statements should not exceed about 20% of the mediator’s input. The mediator’s opening statement, for instance, can contain information about the process (credentials, reassurance, guidelines, etc.). The mediator can also summarize, but each summary should be followed by a question of verification (“Did I understand you correctly?”).;Question-asking is an art. It takes self-control for the mediator to limit the majority of his or her participation to asking meaningful questions.
The payoff, however, is significant as it relegates the substance of the negotiation to the contributions of the parties and sidesteps the mediator’s opinions about content. Mediator neutrality is the basis of a successful process. By using appropriate questioning techniques, the mediator creates a safe forum for the parties to contribute information and resolve their conflict. Skilled questioning facilitates the process by accomplishing two goals; it allows the content to come from the parties themselves, and it reduces the likelihood that the mediator will add unwarranted opinions and inappropriately influence the outcome. The result should be a fair process in which each party feels heard. After all, isn’t that the value of mediation? [leading question].;References;Bennett, M. ; Hermann, M.
(1996). The art of mediation. Notre Dame, IN: National Institute for Trial Advocacy.;Coulehan, J. L., ; Block, M. R. (2006).
The medical interview: Mastering skills for clinical practice. Philadelphia: F. A.
Davis.;Evans, W. G., Tulsky, J. A., Back, A.
L., ; Arnold, R. M. (2006). Communication at times of transitions: How to help patients cope with loss and re-define hope. The Cancer Journal, 12(5), 417-424.;Moore, C.
W. (2003). The mediation process: Practical strategies for resolving conflict (3rd ed.). San Francisco: Jossey-Bass.
;Webster’s II new college dictionary (2001). New York: Houghton Mifflin.