Ethics for Mediation Professionals: What Are the Rules of the New Road?

Friday, June 1, 2001

Introduction

Mediation, whether court-connected, court-referred, or purely private, involves facilitated negotiations by a third party neutral. The neutral’s goal is to assist disputing parties in reaching voluntary, fully informed, and mutually accepted results. Mediation attendance may be voluntary or court-mandated. However, the outcome is binding only if the parties reach agreement and incorporate their settlement terms into contracts or court documents. What are the ethical standards and limits of the neutral’s role? Where are they found?

The two best starting places for New Jersey mediators seeking ethical guidance are the New Jersey Supreme Court’s Standards of Conduct for Mediators, published in January of 2000, and Rule 1:40-4(b) through (g), Rules Governing the Courts of the State of New Jersey. These standards and rules govern court-connected Complementary Dispute Resolution (CDR) programs and cover quality of process, mediator impartiality, confidentiality of mediation communications, qualification and training of neutrals, and termination of the mediation process.

Quality of Mediation Process

Standard I emphasizes the consensual nature of mediation, that mediation is a facilitative (rather than a directive or outcome-driven) process, and that the mediator must honor the parties’ need for self-determination, full information, and informed consent.

Standard II requires the mediator to conduct mediation sessions impartially and to disclose to all parties “any circumstances bearing on possible bias, prejudice, or lack of impartiality.”

Confidentiality and Its Limits

Standard V and Rule 1:40-4(b) govern confidentiality of mediation communications. Often, an Order of Referral signed by a Judge of Superior Court covers the issue. When it does not, then court-referred mediators should repeat or incorporate the standard and rule language by reference into a Retainer Agreement, signed by the mediator and the parties. Unless the parties negotiate for a different set of rules relating to confidentiality (which only happens rarely), the mediator should make it clear that under prevailing rules, the parties’ negotiations with one another, with two important exceptions, are inadmissible in any future court proceedings.

The first exception involves a party’s communication of proposed criminal or illegal conduct “likely to result in death or serious bodily harm,” if the mediator reasonably believes that reporting to appropriate authorities will prevent a party’s illegal behavior.

The second limit on confidentiality is that a party is permitted to establish proof of another party’s mediation communication “by independent evidence.” While the rule is silent as to whether the independent evidence must have been known and available before a party’s in-session disclosure, it appears that a party’s mediation disclosure could lead to the other party’s post-mediation search for evidence to prove what would otherwise be inadmissible as a confidential communication.

Consistent with Standard V, it is essential for the neutral to advise the parties of “the limits and bounds of confidentiality and non-disclosure” before mediation begins. Such early disclosure encourages the parties to communicate openly, but not so much as to damage their case if mediation does not resolve the dispute, and discourages threatening words or conduct.

Finally, and importantly, Rule 1:40-4(c) and Standard III expressly provide that the mediator may not be drawn into an adversarial proceeding as a witness and may not represent or provide professional services to any party to the mediation in the same or any related matter. However, the mediator or a professional member of the mediator’s office may provide professional services in an unrelated matter, either with the consent of all parties or, even without consent, six months after mediation has concluded. In child custody and parenting time matters, Rule 1:40-5 also prohibits a mediator from later acting as an evaluator for any court-ordered report or from making any recommendations to the court regarding custody or parenting time.

Mediator Qualifications and Training

Mediators from various professional disciplines are welcome to serve in court-connected programs. Rule 1:40-12 provides that mediators shall be trained and qualified for service in the areas of custody and parenting time, civil, general equity, and probate disputes, Special Civil Part matters, and/or municipal court matters. Training requirements, training hours, course content, and co-mediation requirements for each of those areas are as stated in Rule 1:40-12(b), including continuing education of 4 hours per year. Mediators failing to meet these basic and ongoing requirements will not be permitted to serve in court-connected mediation programs. Standard IV requires mediators to refrain from mediating matters unless the mediator has “the necessary and required qualifications to satisfy the reasonable expectations of the parties,” and requires mediators to make information available to the parties regarding their relevant training, education, and experience.

In the private sector, there is no State of New Jersey licensure or other required credential limiting one’s service as a mediator, and consumers must ascertain for themselves the qualifications, training, and experience of any proposed neutral.

The New Jersey Association of Professional Mediators (“NJAPM”) is the only group in the state offering accreditation to qualified mediators in the areas of family/divorce mediation and commercial/business mediation. Its published accreditation and continuing education standards are available online at www.njapm.org.

Termination of Mediation for Cause

Termination of process is an important tool for the mediator to understand and properly exercise. It plays a key role in shaping the parties’ understanding of mediation and serves as an appropriate check on a party’s abuse of the process, another party, or (as sometimes happens) the mediator.

Rule 1:40-4(f) states the following seven grounds for process termination, all of which are valid for court-connected or private settings:

(1) An imbalance of power between the parties “that the mediator cannot overcome;”

(2) A party’s perception that the mediator is partial to the other side;

(3) A party’s abusive behavior towards the other party or the mediator “that cannot be controlled;”

(4) A party’s continuous resistance to the process or the mediator;

(5) The parties’ poor communication “seriously impedes effective discussion;”

(6) The mediator believes that a party is under the influence of drugs or alcohol; or

(7) The mediator believes that continuing the process “is inappropriate or dangerous.”

In addition, Standard VI requires the mediator to conduct the mediation diligently, and to monitor the continuing suitability of the case for mediation.

Orders of referral and mediation retainer agreements should incorporate the rules and standards by reference or language. Once again, early disclosure will shape the process positively and discourage party misconduct. If the parties or one of them persist(s) in misconduct, then the mediator should terminate the process and refer the parties back to court and/or counsel.

Unless the parties consent or the rules and standards otherwise provide, neither the mediator, the parties, nor their legal counsel should advise the Court why a mediation has been terminated.

Mediation Practice Considerations

Various organizations, such as the New Jersey Association of Professional Mediators, the American Bar Association, the Association for Conflict Resolution, and the American Arbitration Association, have promulgated Rules of Professional Conduct for neutrals. Such conduct codes contain important principles for use by court-connected, court-referred, and purely private mediators. Mediators should become familiar with relevant codes of conduct and fashion a self-imposed set of ethical principles.

Moreover, mediators who also possess licenses to practice in the legal, mental health, accounting, or other regulated fields will be held to their licensed professional standards when practicing as a neutral. A mediator does not cease to represent his or her profession when acting as a neutral. Presumably, the neutral was selected for his or her reputation, skill, and experience in a primary profession. If the mediator’s behavior would have been actionable if performed by him or her in the course of the traditional licensed practice, then such misconduct may result in discipline by the licensing authority.

For example, Joint Opinion 676/18 of the Supreme Court Advisory Committee on Professional Ethics and Committee on Attorney Advertising, published in the spring of 1994, expressly states that a lawyer who serves as a mediator or arbitrator does so “as part and parcel of the practice of law . . . .” The Joint Opinion therefore imposes upon lawyers who mediate the duty “not to serve as mediator . . . in any case in which they have a conflict of interest,” and cross-references the attorneys’ Rules of Professional Conduct on confidentiality issues. Other professional boards will likely take the same approach vis-a-vis their licensees who also mediate.

Finally, mediators must be aware of limitations of mediation practice, in both process and substance. That is, mediators must know their limits in terms of the complexity of matters to be mediated, but also must stay clear of advising parties substantively in fields in which they lack familiarity or licensure.

For example, a non-lawyer mediator who offers legal or tax advice risks engaging in unauthorized legal practice, and also may invite a negligence claim if an unrepresented party follows such advice to his or her detriment. Similarly, a certified public accountant who serves as a mediator should not dispense mental health advice, or risks client complaints to the Board of Psychological Examiners, a lawsuit, or both.

Conclusion

As stated by the Supreme Court Committees on Professional Ethics and Attorney Advertising in Joint Opinion 676/18,
Alternative Dispute Resolution and Complementary Dispute Resolution have … swept the country. Given the congestion and resultant backlogs of the courts, and the expense of the more traditional adversarial process, state and federal courts have embraced ADR and CDR as providing faster and less expensive resolution of disputes.

The mediation revolution has finally arrived and in a big way. We now have the opportunity and responsibility to make these changes strong, vital, and long lasting. If professional mediators want to see mediation achieve co-equal status with the more traditional adversarial process, then we owe it to our clients and ourselves to adhere to the highest ethical standards. This article has shown that specific ethics guidelines already have been drawn for mediation neutrals. It now remains for the Supreme Court, private accrediting organizations, and individual practitioners to fill in the appropriate blanks. For maximum public and professional gain, let’s keep to the task.