Below are the Ethical
Guidelines for Mediators that have been adopted by the Alternative
Dispute Resolution Section, State Bar of Texas, and by The Supreme
Court of Texas
Ethical Guidelines for
Mediators
PREAMBLE
These Ethical Guidelines are
intended to promote public confidence in the mediation process and
to be a general guide for mediator conduct. They are not intended
to be disciplinary rules or a code of conduct. Mediators should be
responsible to the parties, the courts and the public, and should
conduct themselves accordingly. These Ethical Guidelines are
intended to apply to mediators conducting mediations in connection
with all civil, criminal, administrative and appellate matters,
whether the mediation is pre-suit or court-annexed and whether the
mediation is court-ordered or voluntary.
GUIDELINES
1. Mediation
Defined. Mediation is a private process in which an
impartial person, a mediator, encourages and facilitates
communications between parties to a conflict and strives to promote
reconciliation, settlement, or understanding. A mediator should not
render a decision on the issues in dispute. The primary
responsibility for the resolution of a dispute rests with the
parties.
Comment. A mediator's
obligation is to assist the parties in reaching a voluntary
settlement. The mediator should not coerce a party in any way. A
mediator may make suggestions, but all settlement decisions are to
be made voluntarily by the parties themselves.
2. Mediator
Conduct. A mediator should protect the integrity and
confidentiality of the mediation process. The duty to protect the
integrity and confidentiality of the mediation process commences
with the first communication to the mediator, is continuous in
nature, and does not terminate upon the conclusion of the
mediation.
Comment (a). A mediator should not use information obtained
during the mediation for personal gain or advantage.
Comment (b). The interests of the parties should always be
placed above the personal interests of the mediator.
Comment (c). A mediator should not accept mediations which
cannot be completed in a timely manner or as directed by a
court.
Comment (d). Although a mediator may advertise the
mediator's qualifications and availability to mediate, the mediator
should not solicit a specific case or matter.
Comment (e). A mediator should not mediate a dispute when
the mediator has knowledge that another mediator has been appointed
or selected without first consulting with the other mediator or the
parties unless the previous mediation has been
concluded.
3. Mediation
Costs. As early as practical, and before the mediation
session begins, a mediator should explain all fees and other
expenses to be charged for the mediation. A mediator should not
charge a contingent fee or a fee based upon the outcome of the
mediation. In appropriate cases, a mediator should perform
mediation services at a reduced fee or without compensation.
Comment (a). A mediator should avoid the appearance of
impropriety in regard to possible negative perceptions regarding
the amount of the mediator's fee in court-ordered mediations.
Comment (b). If a party and the mediator have a dispute that
cannot be resolved before commencement of the mediation as to the
mediator's fee, the mediator should decline to serve so that the
parties may obtain another mediator.
4. Disclosure of Possible
Conflicts. Prior to commencing the mediation, the mediator
should make full disclosure of any known relationships with the
parties or their counsel that may affect or give the appearance of
affecting the mediator's neutrality. A mediator should not serve in
the matter if a party makes an objection to the mediator based upon
a conflict or perceived conflict.
Comment (a). A mediator should withdraw from mediation if it
is inappropriate to serve.
Comment (b). If after commencement of the mediation the
mediator discovers that such a relationship exists, the mediator
should make full disclosure as soon as practicable.
5. Mediator
Qualifications. A mediator should inform the participants
of the mediator's qualifications and experience.
Comment. A mediator's qualifications and experience
constitute the foundation upon which the mediation process depends;
therefore, if there is any objection to the mediator's
qualifications to mediate the dispute, the mediator should withdraw
from the mediation. Likewise, the mediator should decline to serve
if the mediator feels unqualified to do so.
6. The Mediation
Process. A mediator should inform and discuss with the
participants the rules and procedures pertaining to the mediation
process.
Comment (a). A mediator should inform the parties about the
mediation process no later than the opening session.
Comment (b). At a minimum the mediator should inform the
parties of the following: (1) the mediation is private
(Unless otherwise agreed by the participants, only the mediator,
the parties and their representatives are allowed to attend.); (2)
the mediation is informal (There are no court reporters
present, no record is made of the proceedings, no subpoena or other
service of process is allowed, and no rulings are made on the
issues or the merits of the case.); and (3) the mediation is
confidential to the extent provided by law. (See, e.g.,
§§154.053, and 154.073, Tex. Civ. Prac. & Rem.
Code.)
7. Convening the
Mediation. Unless the parties agree otherwise, the mediator
should not convene a mediation session unless all parties and their
representatives ordered by the court have appeared, corporate
parties are represented by officers or agents who have represented
to the mediator that they possess adequate authority to negotiate a
settlement, and an adequate amount of time has been reserved by all
parties to the mediation to allow the mediation process to be
productive.
Comment. A mediator should not convene the mediation if the
mediator has reason to believe that a pro se party fails to
understand that the mediator is not providing legal representation
for the pro se party. In connection with pro se
parties, see also Guidelines #9, 11 and 13 and associated comments
below.
8.
Confidentiality. A mediator should not reveal
information made available in the mediation process, which
information is privileged and confidential, unless the affected
parties agree otherwise or as may be required by law.
Comment (a). A mediator should not permit recordings or
transcripts to be made of mediation proceedings.
Comment (b). A mediator should maintain confidentiality in
the storage and disposal of records and should render anonymous all
identifying information when materials are used for research,
educational or other informational purposes.
Comment (c). Unless authorized by the disclosing party, a
mediator should not disclose to the other parties information given
in confidence by the disclosing party and should maintain
confidentiality with respect to communications relating to the
subject matter of the dispute. The mediator should report to the
court whether or not the mediation occurred, and that the mediation
either resulted in a settlement or an impasse, or that the
mediation was either recessed or rescheduled.
Comment (d). In certain instances, applicable law may
require disclosure of information revealed in the mediation
process. For example, the Texas Family Code may require a mediator
to disclose child abuse or neglect to the appropriate authorities.
If confidential information is disclosed, the mediator should
advise the parties that disclosure is required and will be
made.
9. Impartiality.
A mediator should be impartial toward all parties.
Comment. If a mediator or the parties find that the
mediator's impartiality has been compromised, the mediator should
offer to withdraw from the mediation process. Impartiality means
freedom from favoritism or bias in word, action, and appearance; it
implies a commitment to aid all parties in reaching a
settlement.
10. Disclosure and
Exchange of Information. A mediator should encourage the
disclosure of information and should assist the parties in
considering the benefits, risks, and the alternatives available to
them.
11. Professional
Advice. A mediator should not give legal or other
professional advice to the parties.
Comment (a). In appropriate circumstances, a mediator should
encourage the parties to seek legal, financial, tax or other
professional advice before, during, or after the mediation
process.
Comment (b). A mediator should explain generally to pro
se parties that there may be risks in proceeding without
independent counsel or other professional advisors.
12. No Judicial Action
Taken. A person serving as a mediator generally should not
subsequently serve as a judge, master, guardian ad litem, or in any
other judicial or quasi-judicial capacity in matters that are the
subject of the mediation.
Comment. It is generally inappropriate for a mediator to
serve in a judicial or quasi-judicial capacity in a matter in which
the mediator has had communications with one or more parties
without all other parties present. For example, an
attorney-mediator who has served as a mediator in a pending
litigation should not subsequently serve in the same case as a
special master, guardian ad litem, or in any other judicial or
quasi-judicial capacity with binding decision-making authority.
Notwithstanding the foregoing, where an impasse has been declared
at the conclusion of a mediation, the mediator if requested and
agreed to by all parties, may serve as the arbitrator in a binding
arbitration of the dispute, or as a third-party neutral in any
other alternative dispute proceeding, so long as the mediator
believes nothing learned during private conferences with any party
to the mediation will bias the mediator or will unfairly influence
the mediator's decisions while acting in the mediator's subsequent
capacity.
13. Termination of
Mediation Session. A mediator should postpone, recess, or
terminate the mediation process if it is apparent to the mediator
that the case is inappropriate for mediation or one or more of the
parties is unwilling or unable to participate meaningfully in the
mediation process.
14. Agreements in
Writing. A mediator should encourage the parties to reduce
all settlement agreements to writing.
15. Mediator's
Relationship with the Judiciary. A mediator should avoid
the appearance of impropriety in the mediator's relationship with a
member of the judiciary or the court staff with regard to
appointments or referrals to mediation.
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