RULES here, RULES there, RULES RULES EVERYWHERE!

There is no substitute for reading, knowing, and following the rules of one’s trade, and that includes work in mediation. A lawyer must follow the rules no matter where one practices law and a mediator must follow the rules no matter where one performs mediations. Now that we are all working virtually, practicing law or performing mediations frequently takes lace across many borders of states or countries. There is no substitute for knowing the ethical rules of the road, whether by statute, court rules, laws of other countries, or treaties, wherever the work occurs.  Ethical requirements may vary widely from one place to another.

That said, although the wording may vary, there are many consistencies in best practices for facilitative and evaluative mediations everywhere.

1)      Self Determination. This is a basic tenant of mediation no matter where you or the others are located. The mediator is not an advocate for either side. The mediator should be sure the ultimate decision on settlement of the case is the parties’ – that it is voluntary and non-coerced.

2)     Impartiality. A mediator is often referred to as a “neutral.”  This word is used both as a noun and a verb. It is descriptive of the mediators’ position and how they must act and also how they must be perceived. Mediators must be careful not to fall victim to their own actual  or implicit biases and to recognize bias in others. If mediators find they have biases for or prejudices against either side , whether before or during a mediation, and they feel they can no longer perform their duties fairly, they should withdraw.

3)     Conflicts of interest.  A conflict can arise in a number of ways. For example, it would be a conflict if the mediator is related to or in a  business relationship with one of the parties. The mediator should not accept the case. However there are instances in which the conflict may not be as apparent. In such instance, the mediator must nevertheless disclose the conflict or potential conflict and its potential implications, even if the mediator believes he or she can be fair. The mediator must give the parties a chance to discuss the issue privately. If the parties then all agree to go forward with the mediator anyway, the mediator may continue. Even if not always required under applicable laws or rules, putting the disclosure and waiver in writing is advised.

4)     Appearance of conflict or bias. Mediators must be conscious of the appearance of conflict or partiality for or against a party. Perception can be as dangerous to the process as an actual conflict of interest. In such cases, some state statutes mandate following  the same process required for actual conflicts.

5)     Competence of Mediator.  Mediators must maintain competence in technology used for mediations. This is one component of competence — of equal importance to knowing ethical and other rules of the relevant jurisdictions.

6)     Competence of Parties.  If at a mediation, a mediator suspects a party is incompetent due to drugs, alcohol or mental condition, the mediator should make sufficient inquiry to decide whether the mediation should proceed. If it’s determined the party is not  competent  for any reason, the mediation should not proceed.

7)      Confidentiality/privileged. There are different rules on confidentiality depending on a mediator’s jurisdiction and the jurisdiction of the parties. In many states, for example, if the parties are in different rooms, virtually or physically , and one party shares information with the mediator, the mediator may not disclose it to the other side without express permission. The mediator must keep the confidences of each party. Often confidential communications of mediation parties are privileged by law, as well. That means a mediator must keep facts disclosed in mediation confidential from all others, including the court if called as a witness, unless all parties agree otherwise. Typically confidentiality requirements are found in the rules of evidence for the relevant jurisdiction but sometimes are set by statute or other law. Mediators must check the rules of any and all relevant jurisdictions because the amount of protection may vary.

Closer to home, Minnesota State Supreme Court ecently adopted rules for mediation that set the standard for Minnesota:

Mn Rule of Civil Procedure (MRCP) 114. 07 regarding Use of Evidence in Court states in part, “Without the consent of all parties and an order of the court,… no evidence from an [alternative dispute resolution] process or any fact concerning the ADR process may be admitted in any later proceeding involving any of the issues or parties.”

MRCP 114.08 Neutrals Duty of Confidentiality states in part “notes, records, impressions, opinions, and  recollections of the neutral are confidential, and the neutral shall not disclose them to the parties, the public, or any third persons, unless (1) all parties and the neutral agree …or (2) disclosure is required by law, or professional codes …”

In all instances, the mediator must explain the scope of their confidentiality  to the parties.

THESE ARE BASIC and ELEMENTARY practices that should be applied by every mediator with the primary and prevailing practice being to always check the rules, HERE, THERE and EVERYWHERE a mediation will take place.