Commercial Arbitration and
Other Alternative Dispute Resolution Methods
Commercial Arbitration and Mediation Center for the Americas
Model Standards of Conduct For Mediators
The Model Standards of Conduct for Mediators were prepared
from 1992 through 1994 by a joint committee composed of two
delegates from the American Arbitration Association, John D.
Feerick, Chair, and David Botwinik, two from the American Bar
Association, James Alfini and Nancy Rogers, and two from the
Society of Professionals in Dispute Resolution, Susan Dearborn
and Lemoine Pierce.
The Model Standards have been approved by the American
Arbitration Association, the Litigation Section and the Dispute
Resolution Section of the American Bar Association, and the
Society of Professionals in Dispute Resolution.
Reporters: Bryant Garth and Kimberlee K. Kovach
Staff Project Director: Frederick E. Woods
The views set out in this publication have not been considered
by the American Bar Association House of Delegates and do not
constitute the policy of the American Bar Association.
The initiative for these standards came from three
professional groups: The American Arbitration Association, the
American Bar Association, and the Society of Professionals in Dispute
The purpose of this initiative was to develop a set of
standards to serve as a general framework for the practice of
mediation. The effort is a step in the development of the field and
a tool to assist practitioners in it--a beginning, not an end.
The model standards are intended to apply to all types of
mediation. It is recognized, however, that in some cases the application
of these standards may be affected by laws or contractual
The model standards of conduct for mediators are intended to
perform three major functions: to serve as a guide for the
conduct of mediators; to inform the mediating parties; and to promote
public confidence in mediation as a process for resolving
disputes. The standards draw on existing codes of conduct for
mediators and take into account issues and problems that have
surfaced in mediation practice. They are offered in the hope that
they will serve an educational function and provide assistance to
individuals, organizations, and institutions involved in
I. Self-Determination: A Mediator shall Recognize that
Mediation is Based on the Principle of Self-Determination by the
Self-determination is the fundamental principle of mediation.
It requires that the mediation process rely upon the ability of
the parties to reach a voluntary, uncoerced agreement. Any party
may withdraw from mediation at any time.
II. Impartiality: A Mediator shall Conduct the Mediation in
an Impartial Manner.
- The mediator may provide information about the process,
raise issues, and help parties explore options. The
primary role of the mediator is to facilitate a voluntary
resolution of a dispute. Parties shall be given the
opportunity to consider all proposed options.
- A mediator cannot personally ensure that each party has
made a fully informed choice to reach a particular
agreement, but is a good practice for the mediator to
make the parties aware of the importance of consulting
other professionals, where appropriate, to help them make
The concept of mediator impartiality is central to the
mediation process. A mediator shall mediate only those matters in
which she or he can remain impartial and evenhanded. If at any time
the mediator is unable to conduct the process in an impartial
manner, the mediator is obligated to withdraw.
III. Conflicts of Interest: A Mediator shall Disclose all
Actual and Potential Conflicts of Interest Reasonably Known to
the Mediator. After Disclosure, the Mediator shall Decline to
Mediate unless all Parties Choose to Retain the Mediator. The
Need to Protect Against Conflicts of Interest also Governs
Conduct that Occurs During and After the Mediation.
- A mediator shall avoid conduct that gives the appearance
of partiality toward one of the parties. The quality of
the mediation process is enhanced when the parties have confidence
in the impartiality of the mediator.
- When mediators are appointed by a court or institution,
the appointing agency shall make reasonable efforts to
ensure that mediators serve impartially.
- A mediator should guard against partiality or prejudice
based on the parties' personal characteristics,
background or performance at the mediation.
A conflict of interest is a dealing or relationship that might
create an impression of possible bias. The basic approach to
questions of conflict of interest is consistent with the concept
of self-determination. The mediator has a responsibility to
disclose all actual and potential conflicts that are reasonably
known to the mediator and could reasonably be seen as raising a question
about impartiality. If all parties agree to mediate after being
informed of conflicts, the mediator may proceed with the
mediation. If, however, the conflict of interest casts serious doubt
on the integrity of the process, the mediator shall decline to
A mediator must avoid the appearance of conflict of interest
both during and after the mediation. Without the consent of all
parties, a mediator shall not subsequently establish a professional
relationship with one of the parties in a related matter, or in
an unrelated matter under circumstances which would raise
legitimate questions about the integrity of the mediation
IV. Competence: A Mediator shall Mediate Only When the
Mediator has the Necessary Qualifications to Satisfy the
Reasonable Expectations of the Parties.
- A mediator shall avoid conflicts of interest in
recommending the services of other professionals. A
mediator may make reference to professional referral
services or associations which maintain rosters of
- Potential conflicts of interest may arise between
administrators of mediation programs and mediators and
there may be strong pressures on the mediator to settle a
particular case or cases. The mediator's commitment must
be to the parties and the process. Pressure from outside
of the mediation process should never influence the
mediator to coerce parties to settle.
Any person may be selected as a mediator, provided that the
parties are satisfied with the mediator's qualifications.
Training and experience in mediation, however, are often
necessary for effective mediation. A person who offers herself or
himself as available to serve as a mediator gives parties and the
public the expectation that she or he has the competency to mediate
effectively. In court-connected or other forms of mandated
mediation, it is essential that mediators assigned to the parties
have the requisite training and experience.
V. Confidentiality: A Mediator shall Maintain the Reasonable
Expectations of the Parties with Regard to Confidentiality.
- Mediators should have information available for the
parties regarding their relevant training, education and
- The requirements for appearing on the list of mediators
must be made public and available to interested persons.
- When mediators are appointed by a court or institution,
the appointing agency shall make reasonable efforts to
ensure that each mediator is qualified for the particular
The reasonable expectations of the parties with regard to
confidentiality shall be met by the mediator. The parties'
expectations of confidentiality depend on the circumstances of
the mediation and any agreements they may make. The mediator
shall not disclose any matter that a party expects to be
confidential unless given permission by all parties or unless
required by law or other public policy.
VI. Quality of the Process: A Mediator shall Conduct the
Mediation Fairly, Diligently, and in a Manner Consistent with the
Principle of Self-Determination by the Parties.
- The parties may make their own rules with respect to
confidentiality, or other accepted practice of an
individual mediator or institution may dictate a
particular set of expectations. Since the parties'
expectations regarding confidentiality are important, the mediator
should discuss these expectations with the parties.
- If the mediator holds private sessions with a party, the
nature of these sessions with regard to confidentiality
should be discussed prior to undertaking such sessions.
- In order to protect the integrity of the mediation, a
mediator should avoid communicating information about how
the parties acted in the mediation process, the merits of
the case, or settlement offers. The mediator may report,
if required, whether parties appeared at a scheduled
- Where the parties have agreed that all or a portion of
the information disclosed during a mediation is
confidential, the parties' agreement should be respected
by the mediator.
- Confidentiality should not be construed to limit or
prohibit the effective monitoring, research, or
evaluation of mediation programs by responsible persons.
Under appropriate circumstances, researchers may be
permitted to obtain access to the statistical data and, with
the permission of the parties, to individual case files,
observations of live mediations, and interviews with
A mediator shall work to ensure a quality process and to
encourage mutual respect among the parties. A quality process
requires a commitment by the mediator to diligence and procedural fairness.
There should be adequate opportunity for each party in the
mediation to participate in the discussions. The parties decide
when and under what conditions they will reach an agreement or
terminate a mediation.
VII. Advertising and Solicitation: A Mediator shall be
Truthful in Advertising and Solicitation for Mediation
- A mediator may agree to mediate only when he or she is
prepared to commit the attention essential to an
- Mediators should only accept cases when they can satisfy
the reasonable expectations of the parties concerning the
timing of the process. A mediator should not allow a
mediation to be unduly delayed by the parties or their
- The presence or absence of persons at a mediation depends
on the agreement of the parties and the mediator. The
parties and mediator may agree that others may be
excluded from particular sessions or from the entire
- The primary purpose of a mediator is to facilitate the
parties' voluntary agreement. This role differs
substantially from other professional-client
relationships. Mixing the role of a mediator and the role
of a professional advising a client is problematic, and
mediators must strive to distinguish between the roles. A
mediator should, therefore, refrain from providing
professional advice. Where appropriate, a mediator should
recommend that parties seek outside professional advice,
or consider resolving their dispute through arbitration,
counseling, neutral evaluation, or other processes. A
mediator who undertakes, at the request of the parties,
an additional dispute resolution role in the same matter
assumes increased responsibilities and obligations that
may be governed by the standards of other processes.
- A mediator shall withdraw from a mediation when incapable
of serving or when unable to remain impartial.
- A mediator shall withdraw from a mediation or postpone a
session if the mediation is being used to further illegal
conduct, or if a party is unable to participate due to
drug, alcohol, or other physical or mental incapacity.
- Mediators should not permit their behavior in the
mediation process to be guided by a desire for a high
Advertising or any other communication with the public
concerning services offered or regarding the education, training,
and expertise of the mediator shall be truthful. Mediators shall
refrain from promises and guarantees of results.
VIII. Fees: A Mediator shall fully Disclose and Explain the
Basis of Compensation, Fees, and Charges to the Parties.
- It is imperative that communication with the public
educate and instill confidence in the process.
- In an advertisement or other communication to the public,
a mediator may make reference to meeting state, national,
or private organization qualifications only if the entity
referred to has a procedure for qualifying mediators and
the mediator has been duly granted the requisite status.
The parties should be provided sufficient information about
fees at the outset of a mediation to determine if they wish to
retain the services of a mediator. If a mediator charges fees,
the fees shall be reasonable, considering among other things, the
mediation service, the type and complexity of the matter, the
expertise of the mediator, the time required, and the rates customary
in the community. The better practice in reaching an
understanding about fees is to set down the arrangements in a
IX. Obligations to the Mediation Process: Mediators have a
Duty to Improve the Practice of Mediation.
- A mediator who withdraws from a mediation should return
any unearned fee to the parties.
- A mediator should not enter into a fee agreement which is
contingent upon the result of the mediation or amount of
- Co-mediators who share a fee should hold to standards of
reasonableness in determining the allocation of fees.
- A mediator should not accept a fee for referral of a
matter to another mediator or to any other person.
- Mediators are regarded as knowledgeable in the process of
mediation. They have an obligation to use their knowledge
to help educate the public about mediation; to make mediation
accessible to those who would like to use it; to correct
abuses; and to improve their professional skills and
Copies of the Model Standards of Conduct for Mediators are
available from the offices of the participating organizations.
The addresses are listed below.
American Bar Association
Section on Dispute Resolution
740-15th Street NorthWest
Washington, D.C. 20005-1009
Society of Professionals in Dispute Resolution
815-15th Street NorthWest
Washington, D.C. 20005
CAMCA wishes to express their appreciation for a grant from the Harry
De Jur Foundation.