Mediator Code of Conduct Competing with Other Professional Codes of Conduct?

 

Melissa Zisler in cooperation with Alexia Georgakopoulos, Ph.D. for Institute of Conflict Resolution and Communication Blog

 Yes, that’s right, the ethical debates will forever occupy the mediation world.  As mediation is growing in popularity throughout the nation, more and more questions arise.  Creating quite a buzz in the world of court mediators lately has been the issue as to whether or not it is appropriate for the mediator to respond to a defendants request for clarity of a judgment.

 According to MEAC, these are the appropriate measures to follow:

 1) “Consistent with the standards of impartiality and preserving party self-determination, a mediator may provide information that the mediator is qualified by training or experience to provide.”

 2) “It is not appropriate for a mediator to ask a plaintiff’s counsel to provide legal information or advice to the pro-se defendant in the case.

 In regards to the first statement by the MEAC, included in the mediator’s code is Rule 10.370(a).  It states that the mediator has the right to offer information that they have been trained to provide.   As a mediator, your goal is to facilitate an agreement while maintaining your oath of impartiality.  Of course, as a mediator, you must be aware of your role and do not bypass it.  The bias or impartiality would arise if you continue past explanation, and offered your client your opinion as opposed to fact. Also, you want to make sure you are functioning as a mediator, not as the therapist, attorney or other professional.

 In regards to the second statement!  The proposed counsel could be advocating in their client’s best interest, as they are not held to the same impartiality stipulations as the mediator. 

 These ethical considerations will continue to arise.  It is healthy as mediators continue to dialogue on these matters.

The Amendment to the Florida Rules for Certified and Court Appointed Mediators: What does it mean and what is it?

“Dilip in cooperation with Alexia Georgakopoulos, Ph.D….written for the ICRC Blog” 

What does the Amended Florida Rule for Certified and Court Appointed Mediators Mean to Mediators?

As, mediators, we must recognize and adhere to the essential requirement of mediation as the need of the parties to trust the mediator based on his/her honesty and trustworthiness. Therefore, mediators would agree that that marketing of mediation services must be based on honest and accurate representation of qualifications of mediators and the services offered. This amendment, by establishing the judicially required standards for marketing of mediation services in the State of Florida, has put forth requirements that would enable mediators to market their services in a manner that is conducive to the development of trust of the parties in a mediator that is based on honest and accurate representation of their qualifications and service. The requirements established under this amendment may serve as principles for mediators under other jurisdictions.  It  would be beneficial for all mediators to review and if necessary revise their marketing practice and information for complying with prohibitory judicial requirements of the following of three main topics of the amendment that are applicable to their practice: 1) representation and marketing of prior adjudicatory experience, 2) marketing based on certifications , and 3) marketing based on claims and promises of achieving specific outcomes or that diminish the important aspects of mediation in terms of party’s right to self-determination, the mediator’s impartiality or the dignity of the mediation process or the judicial system.

What is Scope of the Amended Florida Rule for Certified and Court Appointed Mediators?

Based on the proposed amendments submitted by the Florida ADR Rules and Policy Committee[1], on April 1, 2010, the Court amended Florida Rule for Certified and Court Appointed Mediators 10.610. By amending the Rule 10.610 from “Advertising to Marketing Practices” the Court expanded the rule’s judicial requirements for advertising and marketing of mediation practices as highlighted below:

1. False or Misleading Marketing Practices. Prohibits marketing based on false or misleading information and requires an accurate and honest marketing of a mediator’s qualifications, services or the mediation process.
2. Supreme Court Certification. Any marketing indicating that a mediator is “Florida Supreme Court certified” must include at least one area in which the mediator is certified.
3. Other Certifications. Any Marketing information referring to a mediator being certified must be founded in the mediator’s successful completion of the established process for certifying mediators involving actual instruction. The mediator must also identify the area or field of certification as well as the entity issuing the certification.
4. Prior Adjudicative Experience. Any marketing information that either states or implies that prior adjudicative experience in a capacity such as a judge, magistrate, or administrative hearing officer, makes the mediator better or more qualified is considered misleading marketing.
5. Prohibited Claims or Promises. Prohibits mediators from making claims of achieving specific outcomes or promises that imply favoritism for the purpose of obtaining business.
6. Additional Prohibited Marketing Practices. Prohibits mediators from engaging in marketing practice that diminishes the importance of a party’s right to self-determination or the impartiality of the mediator, or that demeans the dignity of the mediation process or the judicial system.

The Court’s commentary, while considering an accurate representation of the mediator’s judicial experience to be appropriate, states that when engaging in mediation, a former adjudicative officer should not lend the prestige of the judicial office to advance private interest in a manner inconsistent with this rule and prohibits the word “judge” with or without modifiers to the mediator’s name or depiction of a mediator in judicial robes.

 

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[1] Established in 2003, the Florida Supreme Court Committee on Alternative Dispute Resolution (ADR) provides the Supreme Court (Court) with recommendations relating to all legislation, policies and practices related to standards and requirements for the model of ADR and mediation practices.

 

Mediator Ethics Advisory Committee Opinion – 2010

“Dilip in cooperation with Alexia Georgakopoulos, Ph.D….written for the ICRC Blog”

Context of Mediation Practice

The practice of mediation is influenced by continuously evolving social conditions, technological innovations, increasing potential for services requests for outside the scope of mediation or the qualifications of the mediator, and changes in the regulatory and judicial requirements. Under this evolving environment, a mediator has obligatory ethical responsibilities for insuring the party’s right to self determination; insuring the impartiality of the mediator; maintaining the dignity of the parties as well as of the mediation process and the dignity of the judicial process; not promising or making claims of achieving specific outcomes; and not providing services other than mediation or services that are outside the qualifications of the mediator. 

Mediator Ethics Advisory Committee (MEAC)

Ethics in mediation is a critical and evolving issue that needs to be continuously examined and the appropriately recognized authority needs to provide the guidance that is consistent with the law and the Court-approved standards for the practice of mediation. Appointed in 1994, as the part of the Florida Dispute Resolution Center (DRC) that was established by the Supreme Court of Florida, Mediator Ethics Advisory Committee (MEAC) is the Court recognized authority for issuing advisory ethics opinions to mediators. The advisory opinions of MEAC are included in the DRC newsletter and posted on the Court’s website at www.floridasupremecourt.org.

MEAC January 2010 Advisory Opinion

This opinion demonstrates the value and the benefits MEAC provides to all mediators for addressing ethical issues related to mediation. In response to a question, submitted by a county and family mediator, of whether it is appropriate for a mediator to provide an explanation of a judgment that some mediators considered to be providing legal advice and other mediators did not, MEAC issued the following opinion.  

In the Summary, MEAC advised that, subject to the standards of impartiality and preservation of party’s self-determination, in accordance with Rule 10.370. (a), a mediator may provide the information the mediator is qualified by training or experience to give, that is consistent with Rule 10.370. (a).

The mediator’s role is to assist the parties in their efforts for identifying issues, exploring the options/alternatives and to facilitate parties’ actions for reaching voluntary agreements. According to MEAC, per Rule 10.220, a mediator is responsible for assisting parties in reaching informed and voluntary decisions while maintaining their right of self-determination. Therefore, per Rule 10.310(a), a mediator may assist the parties in gathering the information necessary for making an informed decision. A mediator is not allowed to offer personal or professional opinions, including legal opinions, with an intention to coerce or unduly influence the parties, or to decide or direct resolution of any issue. However, a mediator is permitted to respond in other ways such as conveying factual information provided by the Court or repeating instructions made by a judge, and reading and discussing language from the court forms.

Additionally, MEAC advised the mediators that when it becomes apparent that parties do not fully comprehend or appreciate the effects of an agreement on their legal rights or obligations, in accordance with Rule 10.420. (b) (3), they must advise the parties to seek independent legal counsel. Additionally, MEAC advised that in accordance with the Rule 10.420. (b) (3), the mediator should adjourn or terminate the mediation if the mediator believes that the case is unsuitable for mediation or that any party is unable or unwilling to meaningfully participate in the mediation process. Finally, MEAC advised the mediators that, in accordance with the Rules [Rules 10.310 (a) Self Determination, 10.330. (a) Impartiality, 10.370. (c) Advice, Opinions or Information, and 10.410 Balanced Process], it is not appropriate for a mediator to ask plaintiff’s counsel to provide legal information or advice to the pro se defendant in the case.