Ethics in Mediation:
Protecting the Integrity of the Mediation
by Randall E. Butler
Published in the Houston Lawyer, journal of the Houston Bar
Since the enactment in 1987 of the Texas ADR Act
it has been the express policy of the State of Texas to
encourage the peaceable resolution of disputes and the early
settlement of pending litigation through voluntary settlement
procedures. Tex. Civ. Prac. & Rem. Code, sec. 154.002. In
the thirteen years since the enactment of this enabling
legislation mediation has grown from a little known arcane
process to the most widely used alternative dispute resolution
procedure in the state. While the success rate of mediation has
fallen somewhat in recent years, based on anecdotal research, it
still enjoys a high success rate. While I have no data to back
up the assertion, in my experience the public holds the
mediation process and mediators in high esteem.
But if the publicís confidence in the
mediation process were to be eroded, the efficacy of mediation
as a peaceable resolution process would be diminished. Most
mediators were taught that risk is the mediatorís currency. I
disagree. Before the parties will even grant passport to a
mediator to speak to them of the risks inherent in their
dispute, they must first trust the mediator. The foundation of
the effectiveness of mediation is the confidence of the
participants in the integrity of the mediator.
The purpose of the Ethical Guidelines for
Mediators promulgated by the ADR section of the State Bar of
Texas is to promote that public confidence in the mediation
process. However the Ethical Guidelines of the State Bar, as
well as the Model Standards of Conduct for Mediators, function
only as a general guide for mediator conduct. They do not serve
as disciplinary rules or a code of conduct.
The purpose of this paper is to educate both
lawyers and mediators as to those general guidelines for the
conduct of the mediator and the conduct of the mediation and to
explore some of the ethical concerns and dilemmas that can
emerge before, during, and after a mediation.
The Integrity of the Mediation Process Begins
With the Mediator.
Just yesterday a former president of TTLA
expressed the opinion that cases are most likely to settle in
mediation when all of the parties and their counsel trust the
mediator. "It is hard to get a case settled when the lawyerís
number one concern is protecting their private parts from the
A mediator should protect the integrity of the
process. The obligation starts with the first communication to
the mediator. The obligation is continuous in nature and it does
not terminate upon conclusion of the mediation. Ethical
Guidelines for Mediators promulgated by the ADR Section of the
State Bar of Texas, 2 (hereinafter referred to as EG).
Impartiality of the Mediator.
The integrity of the mediator begins with the
parties having a high level of confidence that the mediator is
impartial. Every reference in the Texas ADR Act to mediators is
stated in terms of "impartial third party." Tex. Civ.
Prac. & Rem. Code, sec. 154.051, et seq. (Hereinafter
referred to as Tex. ADR Act.) The Ethical Guidelines for
Mediators promulgated by the ADR Section of the State Bar of
Texas begin by defining mediation as "a private process in
which an impartial person, a mediator, Ö" EG 1. But what
The Ethical Guidelines speak in terms of the
mediatorís "known relationships with the parties or their
counsel that may affect or give the appearance of
affecting the mediatorís neutrality." EG 4 (emphasis
added). Similarly, the Model Standards of Conduct for Mediators
promulgated by the ABA, AAA, and SPIDR define impartiality in
terms of conflicts of interest. "A conflict of interest is
a dealing or relationship that might create an impression of
possible bias." Model Standards, III. What constitutes a
relationship with the parties or their counsel that may affect
or give the appearance of affecting the mediatorís neutrality?
There is not an abundance of case law answering
the question. But there are other bodies of law or standards of
conduct that may be instructive on the question of what would
constitute a conflict of interest for a mediator.
One source of instructive material is the Rules
of Professional Conduct for lawyers. But more helpful may be the
rules governing disqualifications of judges. Why? Because the
Texas Commission on Professional Ethics has already opined in
this context that a mediator constitutes an "adjudicatory
official" under the State Bar Rules of Professional
Conduct. Tex. Comm. on Professional Ethics, Op. 496. V. 57 Tex.
Bar. J. 1135 (1994). Rule 18b of the Texas Rules of Civil
Procedure set out the grounds for disqualification and recusal
of judges. Set out below are principles taken from Rule 18b that
a mediator might be able to reference if his or her impartiality
were to be questioned.
- Has the mediator served as a
lawyer in the matter in controversy or has a lawyer with
whom the mediator previously practiced law served during
such association as a lawyer concerning the matter?
- Does the mediator have an
interest in the subject matter of the controversy?
- Are any of the parties to
the matter related to the mediator by affinity or
consanguinity to the third degree?
- Does the mediator have
personal knowledge of disputed evidentiary facts
concerning the matter to be mediated or does the mediator
have a personal bias or prejudice concerning the subject
matter of the mediation?
- Has the mediator or a lawyer
with whom he practiced law been a material witness
concerning the subject matter of the mediation?
- Has the mediator
participated as counsel, an adviser, or a material witness
in the matter in controversy or expressed an opinion
concerning the merits of it, while acting as an attorney
in government service?
- Does the mediator know that
he, individually or as a fiduciary, or his spouse or minor
child residing in his household, has a financial interest
in the subject matter in controversy or in a party to the
proceeding, or any other interest that could be
substantially affected by the outcome of the proceeding?
- Is the mediator, his spouse
or any person within a third degree of relationship to
either of them or the spouse of such a person:
- a party to the
- known by the mediator
to have an interest that could be substantially
affected by the outcome of the proceeding;
- known by the mediator
to be likely to be a material witness in the
- Is anyone related to the
mediator within the first degree of relationship serving
as a lawyer for any of the parties to the proceeding?
What if the mediator determines, after first
being contacted about conducting the mediation that he may have
a potential conflict? "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 mediatorís
neutrality." EG 4. The safest practice for a mediator would
be to disclose any relationship that might cause a party or
counsel for a party to reasonably question the mediatorís
impartiality. In that regard, a mediator should consider
disclosing prior representation of one of the parties even if
that representation was in an entirely unrelated matter. A
mediator might even want to disclose friendships with a party or
a lawyer that go beyond business acquaintances and that could be
perceived as creating bias in favor of a "friend."
But, consent of the parties waives any potential
conflicts. See Model Standards of Conduct for Mediators
promulgated by the ABA, AAA, and SPIDR, III; see also Rule 1.11
of the State Bar Rules of Professional Conduct. Practice Tip
for the Mediator: Disclose the potential conflict in the
initial correspondence with the parties and include the
disclosure in the Agreement for Mediation to be signed by the
parties or their counsel with a statement that the parties have
been informed and wish the mediator to conduct the mediation
What if the mediator discovers the existence of
a potential conflict after the mediation has commenced? The
disclosure should be made as soon as practicable to the lawyers
and the parties. EG 4, Comment (b). What happens then? If any
party objects, he should immediately withdraw. "A mediator
should not serve in the matter if a party makes an objection to
the mediator based upon a conflict or perceived conflict."
EG 4. Practice Tip for the Mediator: ask the parties to
sign a disclosure and waiver at the mediation.
But, the mediator must take the initiative if he
or she knows it would be inappropriate to serve as the mediator.
"A mediator should withdraw from mediation if it is
inappropriate to serve." EG 4, Comment (a). Unfortunately,
the Ethical Guidelines give little guidance to the mediator as
to what should lead him to conclude that it is inappropriate to
serve even if the parties all waive an actual or potential
conflict of interest. Certainly if a mediator comes to the
conclusion that he cannot treat the parties fairly and equally
without bias, he should withdraw. This brings us to the next
focal point of consideration.
Impartial Conduct of the Mediation by the
Not only must the mediation be conducted by an
impartial third party, it must also be conducted in an impartial
manner. "A mediator should be impartial toward all
parties." EG 9. If the mediator discovers that his or her
impartiality has been compromised, or the parties make that
discovery, the mediator should offer to withdraw. EG 9, Comment.
Impartiality means freedom from favoritism or bias in word,
action, and appearance. EG 9, Comment. The mediator should at
all times avoid the appearance of bias or favoritism.
"How should I negotiate?" Impartiality
implies a commitment to aid all parties in reaching a
settlement. The Mediator should make a conscious effort not to
appear to favor the party in whose room he is conducting a
private session. For example, the lawyer or one of the parties
may ask a mediator, "What do you suggest as the next move
in the negotiation?" In that situation I try to answer by
telling them that I can tell them what will help achieve
settlement, but that I would do the same if the other party
Function as My Negotiator. A mediator may
also be told by the adjuster in the first private session,
"My authority is x [amount of dollars.] You donít
need to come back to my room until you have the case settled.
See how much you can save me." Or the plaintiffís
attorney might say, "Hereís what I need to get on the
case, you do what you need to do to get it." In both
situations if the mediator agrees to conduct the mediation on
that basis, he has now lost his impartiality and has become the
hired negotiator for one party or the other. When confronted by
that situation the mediator might consider advising the party
that he appreciates the confidence that the party has placed in
him, but that he would prefer to reach agreement with the party
on each responsive offer or demand in order to avoid any
possible appearance of bias.
The Authority Question. Unless otherwise
agreed by the parties the mediator should not convene the
mediation session unless the corporate parties are represented
by officers or agents who have represented to the mediator that
they possess adequate authority to negotiate a settlement. Most
mediators have been taught to ask in the general session if the
persons present have authority to negotiate a settlement. Every
time the question is asked, it is answered in the affirmative.
Unfortunately, too many mediators have then learned later in the
day that the representative was sent to the mediation with no
discretionary authority. If during the mediation, new
information is provided or it is perceived in a different light
that would otherwise lead the representative to change his or
her evaluation, settlement often cannot be achieved because the
representative cannot offer more than the authority given by the
home office. All too often the person with the next layer of
authority cannot then be reached. This oft repeated experience
has led many experienced plaintiffís lawyers to avoid
mediating with certain companies because they feel that the
mediation will be entirely one sided, with the defendant
pressuring the mediator to "go beat up on the plaintiff in
the other room; youíre going to get nowhere in here." Practice
tip for the mediator: ask the representative if she has
sufficient authority or has immediate access to the person that
has discretionary authority and they will listen if you call and
ask for more. I have never had a representative say no, even
when later it turned out not to be the case, but it makes me
feel better about going forward.
"I have a flight to catch." The
mediator is also encouraged by the Ethical Guidelines for
Mediators, unless the parties all agree otherwise, to not to
convene the mediation unless an adequate amount of time has been
reserved by all parties to the mediation to allow the mediation
process to be productive. EG 7. Nothing is more irritating to
another party who has flown half way across the country to
participate in a mediation than to be told by another party or
lawyer that he has to leave at mid-afternoon. Parties with
experience in mediation know that mediation can be a lengthy
process requiring a full business day or more. Anyone who has
seriously studied the process knows that more goes on than just
trading numbers in the form of offers and demands. The Ethical
Guidelines suggest that it could be unethical for the mediator
to insist on proceeding when he knows that the time set aside is
A related complaint sometimes voiced during
mediation is "Why should this take so long, tell them
just to get to their bottom line." Sometimes getting to
the bottom line is appropriate, when the mediator in his
discretion feels like the parties can do so without jeopardizing
a successful outcome. But most parties, particularly the
individual plaintiffs, must go through more than one paradigm
shift before agreeing to the ultimate settlement amount. In
addition, the Ethical Guidelines for Mediators state that the
mediator should assist the parties in considering the benefits
and risks of trial and the alternatives available to them. EG
10. That sometimes requires a lengthy objective discussion of
the evidence that is anticipated to be presented at trial and
controlling legal precedents. In addition, the importance of the
psychological dynamics of ventilation and providing a party full
process satisfaction should not be underestimated.
Protecting the Integrity of the Mediation
Process by Maintaining the Confidentiality of the Process.
The presumed confidentiality of the mediation
process has long been the hallmark of the process. The
confidentiality of mediation was expressly provided by the
legislature in the Texas ADR Act. "Unless expressly
authorized by the disclosing party, the impartial third party
may not disclose to either party information given in confidence
by the other. Tex. ADR Act, sec. 154.053 (b). "Unless
expressly authorized by the disclosing party, the impartial
third party Ö shall at all times maintain confidentiality with
respect to communications relating to the subject matter of the
dispute." Tex. ADR Act, sec. 154.053 (b).
The Ethical Guidelines follow the statutory
mandate. "The mediator should protect the confidentiality
of the process. EG 2. When does that duty start? The duty to
protect confidentiality commences with the first communication
received. EG 2. How long does the duty continue? It continues
throughout the process and does not terminate upon the
conclusion of the mediation. EG 2.
A communication relating to the subject matter
of any civil or criminal dispute made by a participant in an
alternative dispute resolution procedureÖ is confidential, is
not subject to disclosure, and may not be used as evidence
against the participant in any judicial or administrative
proceeding. Tex. ADR Act, sec. 154.073 (a). Any record made at
an alternative dispute resolution procedure is confidential, and
the mediator may not be required to testify in any proceedings
relating to or arising out of the matter in dispute. The
mediator is not subject to process requiring disclosure of
confidential information or data relating to or arising out of
the matter in dispute. Tex. ADR Act, sec. 154.073 (b)
But there are exceptions:
- An oral communication used in or made a part of an
alternative dispute resolution procedures is admissible
or discoverable if admissible and discoverable
independent of the procedure. Tex. ADR Act, sec. 154.073
- A final written agreement to which a governmental body
is a signatory that is reached as a result of an
alternative dispute resolution procedure is subject to
or excepted from disclosure in accordance with Chapter
552 of the Government Code. Tex. ADR Act, sec. 154.073
- The confidentiality privilege is subject to other
legal requirements for disclosure, including the duty to
report abuse or neglect under the Family Code
(subchapter B, Chapter 261) and abuse, exploitation, or
neglect under the Human Resources Code (Subchapter C,
Chapter 48). Tex. ADR Act, sec. 154.073(e). Also note
that each of the participants in a mediation is subject
to the reporting requirement of the Family Code and
Human Resources in connection with abuse, neglect or
exploitation. Tex. ADR Act, sec. 154.053(d).
- If the privilege afforded by the ADR Act conflicts
with other legal requirements for disclosure, note the
procedure set out in subsection (e): the issue of
confidentiality may be presented to the court having
jurisdiction of the proceedings to determine, in camera,
whether the facts or circumstances or materials sought
to be disclosed warrant a protective order or whether
the communications are subject to disclosure.
Do the confidentiality provisions of the Texas
ADR Act prohibit a suit to enforce an alleged verbal agreement
to settle a case reached in mediation? In Hur, et al. v. City
of Mesquite, et al., 893 S.W.2d 227 (Tex. App. - Amarillo,
1995, no writ), the Amarillo court of appeals said no. In that
case the trial court had granted the Cityís special exceptions
to the pleadings of the Hurs for failure to state a cause of
action. The City based the special exceptions on the
confidentiality provisions of the Act. The court of appeals
reversed the ruling of the trial court, but did not address the
issue of what evidence would be admissible of the actual
statements made by the parties in the mediation.
Confidentiality of Mediation Proceedings in
Federal Court. In the Federal Alternative Dispute Resolution
Act, Congress directed the United States District Courts to
enact local rules to provide for the confidentiality of the
alternative dispute resolution processes and to prohibit
disclosure of confidential dispute resolution communications. 28
USCS sec. 652 (d). The United States District Court for the
Southern District of Texas has implemented the following local
rule in furtherance of that Congressional mandate:
"All communications made during ADR
procedures are confidential and protected from disclosure
and do not constitute a waiver of any existing privileges
and immunities." Local Rules of the United States
District Court for the Southern District of Texas, Rule
How is a federal court likely to answer the
question: What if the only evidence to support setting aside a
settlement agreement is evidence of what went on in the
mediation? In FDIC v. White, 76 F. Supp. 2d 736 (N.D.
Tex., 2000), the court ruled that the parties seeking to set
aside a settlement agreement and their attorneys could testify
about statements made by the mediator and opposing attorneys at
the mediation. The FDIC had sued the Whites for fraudulent
transfers and civil conspiracy. In a post-judgment mediation the
Whites agreed to a settlement but then later repudiated the
settlement claiming duress. The Whites claimed that the FDIC
threatened them with criminal prosecution throughout the
mediation. Affidavits from the attorney for the plaintiffs and
from the plaintiffs were filed detailing statements by the
mediator and the attorneys for the FDIC to prove the allegation.
FDIC sought to strike the affidavits claiming a "mediator
privilege" which it asserted was created in the Federal
Alternative Dispute Resolution Act, 28 USC Sec. 652, et seq.,
and under the local rules of the Northern District of Texas. The
applicable local rule adopted under the FADRA states: "all
communications made during ADR procedures are confidential and
protected from disclosure and do not constitute a waiver of any
existing privileges and immunities."
The court held that the confidentiality
provisions did not prevent the plaintiffs from challenging the
validity of the agreement on the basis of duress and denied the
motion to strike the affidavits. The court reasoned that
application of such a privilege in this context would
effectively bar a party from raising well-established common law
defenses such as fraud, duress, coercion and mutual mistake
challenging the validity of a settlement agreement based on
events that transpired at mediation. The court felt it unlikely
that Congress intended such a draconian result under the guise
of preserving the integrity of the mediation process.
Confidentiality During the Mediation. "Unless the parties agree otherwise, all matters, including
the conduct and demeanor of the parties and their counsel during
the settlement process, are confidential and may never be
disclosed to anyone, including the appointing court." Tex.
ADR Act, sec. 154.053(c). Often a mediator is asked questions
such as, "How is Ms. Doe reacting to all of this?" or "Who is really in charge in the other room; who is
taking the lead?" According to the Act, the mediator
should politely decline to answer those questions.
At the same time, the mediator should be sure
that he has an understanding with the parties about what will
and will not be disclosed to another party during the mediation
about what was said during private session with the opposing
party. During the case discussion in the private sessions the
mediator will be given information that would help educate the
opposing party on the risks and benefits of going to trial
versus the known benefit of the proposed settlement agreement.
But the parties also sometimes confide in the mediator
information about trial tactics or procedural pitfalls awaiting
the unwary adversary that a lawyer or party expressly do not
want shared with the other parties. Practice Tip for the
Mediator. Obtain the agreement of counsel and the parties
that if anything is shared with the mediator that a party wishes
to remain confidential, that lawyer or party will bring it to
the attention of the mediator at the moment it is shared. It is
always good to let the parties and their counsel know that the
mediator is otherwise looking for ammunition to use in the other
room to help the parties appreciate their risk.
Assisting to Reach Voluntary Settlements. "Mediation
is a forum in which an impartial person, the mediator,
facilitates communication between partiesÖ" Tex. ADR Act,
sec. 154.023 (a). The mediator should encourage disclosure of
information. EG 10. Again this is more than a place to convene
an exchange of offers and demands. The purpose of mediation
ought to be for the parties to make the wisest decision they can
about what to do with their lawsuit. In order to make a
wise decision, the parties should be given the opportunity to
receive all the information they can in order to make an
informed and wise decision. As stated in the Act, the mediator
facilitates the communication in order to promote
reconciliation, settlement, or, understanding among the parties.
Tex. ADR Act, sec. 154.023(a).
"A mediator may not impose his own judgment
on the issues for that of the parties." Tex. ADR Act, sec.
154.023 (b). While the mediator is charged with the duty to
encourage and assist the parties in reaching a settlement of
their dispute, she may not compel or coerce the parties to enter
into a settlement agreement. Tex. ADR Act, sec. 154.053 (a).
Parties who insist that a mediator should "get tougher with
the opposing party," "beat them into submission,"
or "make them take the money" should be pointed to
this provision of the ADR Act.
Pro Se Parties. A mediator should not start
the mediation if there is reason to believe that a pro se party fails to understand that the mediator is not providing
legal services for the pro se party. EG 7, Comment. A mediator
should explain generally to a pro se party that there are
risks in proceeding without legal counsel. EG 11. Comment (b).
Professional Advice. Many times a mediator
will be asked by a party or even a participating lawyer what the
law is on a particular issue. A mediator should not give legal
or professional advice to the parties. EG 11. But it is
appropriate to encourage the parties to get legal, financial,
tax or other professional advice before, during and after the
mediation. EG 11. Comment (a).
Termination of the Mediation Session. A
mediator should postpone, recess, or terminate the mediation
process if it 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. EG 13. A number of questions are raised by this
What if one of the parties pulls the mediator
aside just prior to the commencement of the mediation and
confides that the party has no additional authority to make an
What if a party announces to the mediator in
private conference that the only way the case will settle is if
the plaintiff agrees to a non-suit?
What if it is 2 a.m. after a long day of
mediation and the parties are looking glassy eyed?
What if, as in one case, a lawyer has been
drinking alcoholic beverages in his car during breaks and is
Get the Settlement Reduced to Writing! A
mediator should encourage the parties to reduce all settlement
agreements to writing. EG 14. "If the parties reach a
settlement and execute a written agreement disposing of the
dispute, the agreement is enforceable in the same manner as any
other written contract." Tex. ADR Act, sec. 154.071. Every
time this mediator has allowed parties to leave without a
durable agreement in which all possible contingencies have been
at least generally addressed, I have been sorry. Parties can and
do suffer settlerís remorse following mediation. In the
absence of a signed written agreement, it is too easy for the
parties to attempt to repudiate a verbal settlement. When that
happens the conduct of all involved in the underlying dispute
always gets ugly.
After the Mediation Ė Continuing to Protect
the Integrity of the Process.
Post-Mediation Judicial Service. A mediator
generally should not 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. EG 12. One big problem is
that the mediator will have had numerous ex-parte communications
with the parties in the mediation, which would be inappropriate
for a quasi-judicial functionary. See EG 12, Comment. But, if
asked by the parties after an impasse is declared, the mediator
may serve as the arbitrator in a binding arbitration proceeding,
as long as the mediator believes that nothing learned during
private conferences with any of the parties will unfairly
influence her while acting as an arbitrator. EG 12. Comment.
No Personal Gain. A mediator should not use
information obtained in the mediation process for personal gain
or advantage. EG 2, Comment (a). The interests of the parties
should always be placed above the interests of the mediator.
Undertaking Representation on Behalf of or
Adverse to Parties to a Mediation. Absent consent of all of
the parties to a proceeding, during the pendency of a mediation
a mediator and/or his law firm cannot ethically accept
representation for or adverse to a party to the mediation in a
matter related or unrelated to the mediation. State Bar Rules of
Professional Conduct. Rule 1.11. Tex. Comm. on Professional
Ethics, Op. 496. V. 57 Tex. Bar. J. 1135 (1994). The Commission
found that a mediator constitutes an adjudicatory official and
therefore applied the rule that would apply to a judge passing
on the merits of a case. Apparently this opinion arose because
there were mediators conducting mediations and then signing up
clients against a party to the mediation arising out of the same
The Commission also ruled that post-mediation representation by the mediator or the mediatorís law firm for
or adverse to a party to the mediation in a matter related to the mediation would be prohibited unless the exceptions in
Rule 1.11 (a) and (c) are operative. Rule 1.11 (a) allows the
adjudicatory official to undertake the representation with the
consent of all the parties after disclosure. Rule 1.11 (c)
allows the mediatorís law firm to undertake the representation
if the lawyer who was the adjudicatory official is screened from
participation in the matter, is apportioned no part of the fee,
and written notice is given to the parties to the proceeding.
See also Poly Software International, Inc. v. Su, 880 F. Supp.
1487 (D. Utah 1995) (lawyer disqualified as counsel in case
involving parties to similar litigation in which he had
participated as a mediator.)
This opinion does not address the question of
whether the mediator or the mediatorís law firm can undertake post-mediation representation on behalf of or adverse to a party to a party to
the mediation in an unrelated matter. But, Rule 1.11 (a)
specifically speaks only to representing anyone "in
connection with a matter in which the lawyer has passed upon the
merits or otherwise participated personally and substantially as
an adjudicatory official." This opinion does not address
the question of whether a lawyer already engaged in litigation
against a defendant can accept a mediation assignment involving
that defendant where it is the defendant who not only consents
to but also requests the service of the lawyer as a mediator in
another case. The committee also declined to speculate about the
relative rights and obligations of the parties regarding
pre-mediation waiver of potential conflicts of interest.
Other Concerns Affecting the Integrity of the
Getting the Business.
Relating to the Judiciary. A mediator should
avoid the appearance of impropriety in the mediatorís
relationship with a member of the judiciary or the court staff
with regard to the appointments or referrals to mediation. EG
15. I know one mediator who refuses to contribute to judges or
candidates political campaigns.
Solicitation and Advertising. A mediator may
advertise his or her qualifications and availability to mediate
but should not solicit a specific case or matter. EG 2, Comment
Fees & Costs.
The mediator should explain all fees and other
expenses to be charged. EG 3. A mediator should never accept a
contingent fee. EG 3. How can we be impartial and charge a
contingent fee based on the amount of the final settlement?
"A mediator should avoid the appearance of impropriety in
regard to possible negative perceptions regarding the amount of
the mediatorís fee in court-ordered mediations." EG 3,
"If a party and the mediator have a dispute
that cannot be resolved before commencement of the mediation as
to the mediatorís fee, the mediator should decline to serve so
that the parties may obtain another mediator." EG 3,
Qualifications of the Mediator.
A mediator should inform the participants of the
mediatorís qualifications and experience. EG 5. I send a
resume and a brief brochure describing my experience.
A mediator should withdraw if he or she does not
feel qualified to conduct a mediation. EG 5, Comment.
Mediation is a process that continues to hold
great promise for reconciliation of warring parties, resolution
of conflict and promotion of greater understanding between
different tribes. But the continued efficacy of mediation is
dependent on the continued confidence of the public in the
integrity of the process. While the responsibility for
protecting the integrity of the mediation process is charged
first to the mediator, every participant in the process bears
some responsibility for maintaining its integrity.
I leave you with this quote:
"Character is distilled out of our
daily confrontation with temptation, out of our regular
response to the call of duty. It is formed as we learn to
cherish principles and to submit to self-discipline.
Character is the sum total of all the little decisions, the
small deeds, the daily reactions to the choices that
confront us. Character is not obtained instantly. We have to
mold and hammer and forge ourselves into character. It is a
distant goal to which there is no shortcut." Sidney
Greenberg, from Strength For A Manís Heart (Brownlow
May each of us be persons of character,
mediators of integrity.