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A COMMENTARY ON THE ACTIVITY OF WRITING CODES OF ETHICS

J. A. Lemmon (Ed.). Making Ethical Decisions. Mediation Quarterly, no. 8. San Francisco: Jossey-Bass, June 1985.

Carl D. Schneider

One bitter cold Chicago night, when I was struggling through a snowstorm to get to another meeting of our long-suffering ethics committee, I reflected on what a strange activity we were engaged in: gathering month after month in a North Side condominium lobby to argue at length about how we should properly describe our responsibilities as mediators. Why would anyone do such an odd activity? Why, indeed, was I doing this?

I would like to hazard here some comments, not only on the product of our efforts and the content of the Professional Standards of Practice for Mediators (PSPM) of the Mediation Council of Illinois, but also on the process of developing and implementing such codes.

The Process

The question of why anyone should even bother writing or reading a code deserves an answer before the reader is confronted with yet another such code. How do we account for this flourishing cottage industry? The answer is that mediation, especially family mediation, is emerging as an organized guild and claiming for itself the status of a profession, and it is precisely the mark of a profession that it be autonomous and self-regulating.

Professions are strange animals. They represent various groups of specialists who have made a successful case to the public that the larger society would benefit from granting them autonomy to perform specialized services, which they can do better than any lay or public agency. In turn, the profession asks that society sanction its authority within certain spheres by granting it a series of powers and privileges.

J.A. Lemmon(Ed.). Making Ethical Decisions. Mediation Quarterly, no. 8. San Francisco: Jossey-Bass, June 1985.

This bargain that the profession strikes with society is a risky one. The autonomy that a profession claims in order to perform its specialized service requires that the profession guarantee not only its skill and competence but also its honor (Garr-Saunders, 1930). The obvious opportunity for the abuse of such power, and the potential for degeneration of an association of specialists into an interest group lobby, requires that professions develop internal mechanisms for self-regulation and external reassurances that they indeed are subject to structures of accountability. As Greenwood (1957) puts it: “Through its ethical code the profession’s commitment to the social welfare becomes a matter of public record, thereby assuring for itself the continued confidence of the community.” Thus, writing codes of ethics is one of the ways professions arrange to regulate themselves, rather than suffering external regulation.

The Product

The Mediation Council of Illinois PSPM document is the product of a year-long project by an ethics committee of the Illinois state council which had given priority to developing a code of ethics. Over the previous three years, local and state mediation codes had proliferated, and we considered simply adopting one of the extant codes, but we also felt the available codes had significant omissions or deficiencies. First, they seemed to be constructed as ad hoc documents. Second, they lacked any provision for sanctions. As a result, two aspects of the Illinois PSPM are significant: its attempt to develop a code of ethics that is organized in terms of general principles, and its procedure for dealing with violations of the code.

Many of the codes we considered seemed more thematic than structural. They spoke to relevant issues but failed to be comprehensive. They seemed to be responses to issues that had arisen in particular localities but had not been sufficiently generalized to represent what could purport to be a general code of ethics for the profession. Some read more like practical advice for the practitioner.

We hoped instead to address the field of mediation in a more organized fashion. To do so, we endeavored to organize our standards in terms of general principles. This decision reflected our understanding of a code of ethics as the embodiment of the range of obligations and responsibilities of a profession, and not merely as a compilation of disparate problems and recommendations for good practice. An adequate framework of professional ethics needs to go beyond local and case-by-case specifics.

We recognized the difficulty of attempting a comprehensive statement in a field as new as divorce mediation. We also recognized that we were not professional ethicists and had limited skill in structuring such a document. We thus turned for help to the already extant codes from our respective professions, beginning with the Ethical Principles of Psychologists of the American Psychological Association and the Code of Professional Ethics of the American Association of Pastoral Counselors. We also consulted the Code of Professional Responsibility and the Model Rules of Professional Conduct of the American Bar Association. Our final PSPM document, modeled on the American Psychological Association’s Ethical Principles of Psychologists, is organized around ten sections (see Exhibit 1).

While we are not totally successful in organizing these ten sections in terms of principles, clear gains still ensued from our attempt. Thus, although two documents may have similar content regarding the expectation that mediators will participate in ongoing continuing education, one may put this expectation under a section concerning training and education, while the other (like the PSPM) puts it under the principle of competence. Thus, instead of the expectation standing as an ungrounded requirement, as it does in the first document, in the PSPM it is firmly rooted in a professional obligation to deliver competent service. Again, the content of the expectations regarding fees in mediation may be similar in two documents; but one may set out costs and fees as a separate section, with no prefatory explanation of why such matters should be regarded as an ethical concern, while the other (like the PSPM) sets its discussion of fees under the principle of the mediator’s obligation to respect the integrity and protect the welfare of clients.

The practice of organizing codes of ethics around principles offers obvious educational advantages. It enables practitioners to get a sense of their basic commitments as professionals and offers them an understanding of the elements that must be weighed in making difficult decisions. This is preferable to trying to enumerate all the problematic situations that arise in mediation, since none of us can anticipate the myriad forms in which such issues occur. To give ourselves principles to guide our deliberations about our practice is, indeed, to treat ourselves in a professional manner–that is, as capable of self-reflection and self-monitoring–while to give ourselves instead a laundry list of ways a mediator should behave is to undercut autonomy, foster questionable conformity, and make our code a very time-limited document. Further, when we have disciplined our thinking in terms of principles, we are able to recognize better the full scope and nature of our responsibilities and tasks. One outstanding example of a document facilitating the organization of our understanding of our responsibilities as mediators is the Code of Professional Conduct for Mediators of the Colorado Council of Mediation Organizations. That code organizes the ethical guidelines in terms of five fundamental responsibilities for mediators: toward the parties, the mediation process, other mediators, agencies and the profession, and other unrepresented parties. Such an approach helps clarify the character of our responsibilities in a simple and comprehensive manner. It is not enough simply to use the language of specific and locale-based rights, duties, and principles. Such items fall short of illustrating the level of general obligation that would account for the particulars.

It may be useful to offer some examples of how a principled approach assists us as mediators: It provides an account of the multiple responsibilities of mediators in institutional settings; it delineates the responsibilities of mediators, not only in the delivery of mediation services but also in the transmission (training) and extension (research) of the field; and it assists mediators in developing the capacity to weigh the varying claims of competing principles in concrete situations.

First, many mediation codes fail to deal with other than individual mediator-client relations. This reflects the current reality that a great many mediators are in private individual or small-group practice. But such a framework does not adequately deal with those situations in which mediators are affiliated with organizations and larger institutions. The PSPM document attempts to spell out the procedural responsibilities of someone working as an employee in a larger organization.

Second, most codes to date have focused primarily on the delivery of services. This reflects the newness of the field. It fails, however, to take into account the responsibility of those engaged not simply in delivering service but also in transmitting and extending the field–in training g and research. The PSPM document attempts to describe the responsibilities of teachers and trainers of mediation in their published statements. Given the number of people currently engaged in training, this is especially relevant. Most practitioners of mediation have only begun to recognize the need for research and to incorporate it in their work. Our document identifies the responsibility of those involved in research to respect the rights and dignity of participants, including the need for informed consent and protection of a person’s freedom to decline to participate in research. The inclusion of such sections helps avoid the distortion that stems from construing the responsibilities of mediators merely in terms of their responsibility to fellow professionals and to clients. The range of obligations we incur as professional mediators includes a responsibility to the public as well and must not be narrowed simply to individual relations. There are special ethical obligations that accrue to professional roles; there is an implicit social covenant between society and the profession, which a professional code of ethics should make explicit.

Third, because of the multiple values inherent in our practice and the several obligations we must balance, a code of ethics cannot spell out unambiguously what we should do in any and every situation. We cannot escape from conflicting claims, but we can gain clarity about the values and priorities involved. Freedman (1975), for example, notes the conflict that arises among the ethical claims of the practicing attorney toward three different parties–the immediate client, the court before which the attorney is pleading, and society at large. These claims often are in unavoidable conflict, which Freedman calls a “trilemma.” The same sort of inherent conflict of rights and duties is daily encountered by the mediator. It is what lies behind our many discussions of the nature of neutrality and impartiality and our attempts to respect client autonomy and self-determination while balancing our responsibility to unrepresented third parties and society at large. The way to deal with such dilemmas is not to ignore part of the conflict or seek simple formulas, but to learn as mediators how to recognize ethical issues as they arise, to consider as part of our necessary knowledge and skills as mediators the capacity to weigh the varying claims of competing principles in specific situations, and to be able to make informed ethical judgments so that we can recognize the elements of good practice.

Second, most codes to date have focused primarily on the delivery of services. This reflects the newness of the field. It fails, however, to take into account the responsibility of those engaged not simply in delivering service but also in transmitting and extending the field–in training g and research. The PSPM document attempts to describe the responsibilities of teachers and trainers of mediation in their published statements. Given the number of people currently engaged in training, this is especially relevant. Most practitioners of mediation have only begun to recognize the need for research and to incorporate it in their work. Our document identifies the responsibility of those involved in research to respect the rights and dignity of participants, including the need for informed consent and protection of a person’s freedom to decline to participate in research. The inclusion of such sections helps avoid the distortion that stems from construing the responsibilities of mediators merely in terms of their responsibility to fellow professionals and to clients. The range of obligations we incur as professional mediators includes a responsibility to the public as well and must not be narrowed simply to individual relations. There are special ethical obligations that accrue to professional roles; there is an implicit social covenant between society and the profession, which a professional code of ethics should make explicit.

Third, because of the multiple values inherent in our practice and the several obligations we must balance, a code of ethics cannot spell out unambiguously what we should do in any and every situation. We cannot escape from conflicting claims, but we can gain clarity about the values and priorities involved. Freedman (1975), for example, notes the conflict that arises among the ethical claims of the practicing attorney toward three different parties–the immediate client, the court before which the attorney is pleading, and society at large. These claims often are in unavoidable conflict, which Freedman calls a “trilemma.” The same sort of inherent conflict of rights and duties is daily encountered by the mediator. It is what lies behind our many discussions of the nature of neutrality and impartiality and our attempts to respect client autonomy and self-determination while balancing our responsibility to unrepresented third parties and society at large. The way to deal with such dilemmas is not to ignore part of the conflict or seek simple formulas, but to learn as mediators how to recognize ethical issues as they arise, to consider as part of our necessary knowledge and skills as mediators the capacity to weigh the varying claims of competing principles in specific situations, and to be able to make informed ethical judgments so that we can recognize the elements of good practice.

Another aspect of our PSPM document is its provisions for sanctions in dealing with violations of the code. Of course, codes of ethics have other functions besides regulation. They are also pedagogical and administrative tools–offering models of behavior, setting guidelines to good practice, defining the proper parameters of practice, and contributing to the development of competence and quality in service. Furthermore, those who have studied disciplinary action by professions against members of the profession have repeatedly noted how reluctantly and infrequently sanctions are applied. Nevertheless, self-regulation is an indispensable obligation of a profession and one of the essential functions of a code of ethics. It may still be true that informal regulation is at least as important as formal mechanisms of regulation, but codes of ethics fail to fulfill one of their functions if they lack any operational clauses. Milne (1984), in her discussion of sanctions, recognizes their benefits but suggests that the newness of the field, the uncertainty regarding who belongs to the field and what constitutes good practice, and the lack of any appropriate body capable of claiming legitimacy and implementing and administering sanctions all present major impediments to developing viable mechanisms to regulate divorce mediation services.

It is true that until now we have not had a recognized national body that could claim such authority. While the national picture is still developing, however, it seems that state councils, as professional organizations, could appropriately exercise this function, at least in terms of codes of ethics that involve disciplinary provisions. As Milne notes, among the mechanisms of professional regulation–licensure, certification, accreditation, registration, and formal subscription to a standard of practice–the latter is the least restrictive formal mechanism of control available.

Although to date they have not been tested, the PSPM document offers detailed procedures for processing complaints regarding violations of the code. Our procedures are modeled on similar ones for adjudicating ethical complaints in related professional associations (Mills, 1984). I hope that similar provisions will be developed by other local and state councils; our procedures are only a first step. For such a mechanism to be functional, local ethics committees need to be trained; provisions need to be set for membership rotation on such committees; and formats need to be developed for ascertaining the nature of violations, dealing with anonymous complaints, requesting releases for obtaining information and records, and developing appropriate means of ensuring confidentiality of proceedings and providing for appeals. The functioning of these procedures also involves distinguishing among complaints “outside the ethics realm, related instead to legal issues, impoliteness or discourtesy, or, especially in advertising, (to) ‘tacky’ behavior, that is, behavior that may be in poor taste but is not technically unethical” (Mills, 1984). Such behaviors need to be dealt with in other forums.

So seen, procedures for adjudicating violations of the code can be a useful component of the whole range of regulatory forms–including entry-level criteria, professional schools and training programs, professional associations, consultation and supervision-that exist to maintain competence and integrity within the profession.

The gains should not be exaggerated; such mechanisms do not resolve the tension between the issue of individual autonomy and a profession’s collective claim to autonomy (Moore, 1970). They do not eliminate the conflict between a profession’s self-interest and its claim to serve the public interest, nor do they settle the issue of the place of lay participation in the regulation of professions (Barber, 1980). Such mechanisms do not resolve the dilemma of disciplinary action: Dismissal from professional association segregates those who are subject to censure and places offenders beyond the control of those who disapprove of their practice (Friedson, 1970). Finally, they do not solve the self-segregation of professionals into contiguous networks having marked differences in technical and normative standards, but little interaction (Friedson, 1970). But these are larger issues, for another time and place; codes of ethics have a more modest function.

Exhibit 1. Mediation Council of Illinois (MCI) Professional Standards of Practice for Mediators. a

a Adapted, with permission from the American Association, by Carl D. Schneider, Nettie Breslin, Joy Feinberg, Helen, Rogal, and Burton Zoub.

Definition

Mediation is a voluntary procedure whereby an independent and impartial third party or pardes promote and facilitate the resolution of a dispute between parries. Mediation is based on full disclosure of all facts related to the disputes so that a fair and equitable agreement can be achieved by the disputants. The end product is a written memorandum of agreement, detailing all the issues involved and the accord of the parties. In matters of divorce mediation, the agreement will encompass the division of marital property, spousal and child support, and child custody and parental access.

I. Competence

Mediators shall maintain high standards of competence. Recognizing the boundaries of their competence and the limitations of their techniques, they only provide services or use techniques for which they are qualified by training and experience, using consultation from other professionals, as appropriate. They maintain knowledge of current professional information related to the services they render. Mediators accurately represent their competence, education, training, and experience.

  1. Formal Education. Mediators shall hold either a bachelor of law degree; a J.D. degree; a master’s degree; or equivalent training or experiences in mental health or related disciplines. Mediators shall be members in good standing in the professional organizations of their disciplines.
  2. Training. Mediators shall have undergone at least forty hours of training specifically in mediation, led by qualified mediators and/or by a recognized training organization before representing themselves to the public as mediators. Qualified divorce mediators shall have at least a basic awareness of applicable family law, and training in the divorce process, conflict management, family systems and therapy, child development, and the effect of divorce upon children.
  3. Continuing Education. Mediators shall participate in continuing education and be responsible for ongoing professional growth. Mediators recognize their shared responsibility to join with other mediators and with members of other related professions to promote mutual professional development.
  4. Self-Monitoring, Personal Functioning, and Bias. Mediators recognize that their capacity to mediate successfully depends in part on their ability to maintain effective interpersonal relations. They shall refrain from undertaking any mediation in which their personal problems are likely to lead to inadequate professional services or harm to a client; or, if engaged in such activity, when they become aware of their personal problems, they shall suspend, terminate, or limit the scope of their mediation activities or seek competent professional assistance to determine whether they should suspend, terminate, or limit the scope of their mediation activities.

II. Confidentiality

Mediation proceedings and all information obtained from and about the participants through the mediation process shall be treated as confidential unless this requirement is waived by informed consent of both parties. Where there is clear and imminent danger to an individual or to society, the obligation of the mediator to maintain confidentiality will not apply.

  1. Safeguards/Invasion of Privacy/Keep Confidential. Personal or evaluative information is discussed only for professional purposes and only with persons clearly concerned with the case. Written and oral reports present only information germane to the immediate purposes, and every effort is made to avoid undue invasion of privacy.
  2. Public Use of Information. Mediators who present personal information obtained during the course of professional work in writings, lectures, or other public forums need either to obtain adequate prior informed consent or to disguise identifying information of the persons involved.
  3. Limits of Confidentiality. While the mediator should in every way possible seek to maintain and to protect the confidentiality of mediation, including agreements with the parties involved that the mediator and the records of the mediation process are not to be subpoenaed in any subsequent litigation, the mediator should also inform the parties involved of the limits of confidentiality. At present, this means in particular that mediation has no statutory protection of its confidentiality and is not recognized as privileged communication by law.
  4. Records. Mediators make provisions for maintaining confidentiality in the storage and ultimate disposal of client records.

III. Welfare of the Client

Mediators respect the integrity and protect the welfare of the families and individuals with whom they work. They make reasonable efforts to ensure that their services are used appropriately. These efforts include fully informing potential clients of the purpose and nature of the mediation process.

  1. Fees. Financial arrangements in professional practice are in accord with professional standards that safeguard the best interests of the client and that are clearly understood by the client in advance of billing.
    1. Fee Arrangements. The mediator should explain the fees for mediation and reach an agreement with the couple for payment at the orientation session. A mediator shall not charge a contingency fee or base the fee in any manner on the outcome of the mediation process. A flat fee for the entire mediation may be charged if agreed at the outset. Hourly rates may be established, either at a set rate or on a sliding scale, taking into account the financial means and abilities of the parties.
    2. Additional Professional Consultation. Clients should be advised at the outset of mediation that other relevant professionals, in addition to attorneys, may have to be employed to assist the mediation process in establishing values, weighing tax consequences of alternative arrangements, and other technical information.
    3. Referral Fee. No commission, rebate, or other form of remuneration may be given or received for referral of clients for professional services, whether by an individual or by an agency.
    4. Pro Bono. Mediators contribute a portion of their services to work for which they receive little or no financial remuneration.
  2. Conflict of Interest: Dual Relationships. Mediators have the responsibility of monitoring their own needs and values, and of acting in accordance with their potentially influential position vis-a-vis clients and children of clients, in order to avoid exploiting the trust and dependency involved in the mediation process to their own ends or gratification. Mediators shall make every effort to avoid dual relationships with clients and/or relationships that might impair their professional judgment or increase the risk of client exploitation. Examples of such dual relationships include but are not limited to sexual intimacies with clients, service to students, supervisors, close friends, or relatives.
  3. Conflict of Interest: Employee/Client. Upon recognition of an actual or potential conflict of interest between the client and the mediator’s employing institution, mediators shall clarify the nature and direction of their loyalties and responsibilities and keep all parties informed of their commitments.
  4. Initial Advice. At the initial orientation session, mediators should at a minimum advise potential clients of the following:
    1. The issues to be mediated should be delineated from the outset. In divorce mediation, the parties should not begin mediation unless they are agreed that their marriage is to be dissolved and that they are voluntarily submitting all or certain of the disputed issues in connection with child custody, visitation, support, or property division for mediation.
    2. Therapy is not a part of the mediator’s function. Therapists should not conduct mediation when their clients have contracted for therapeutic services.
    3. Neither law nor therapy shall be practiced in mediation. Attorneys should not conduct mediation when their clients have contracted for legal services. Discussion of legal alternatives that develop during the mediation process shall be discussed by the parties with their respective legal representatives for purposes of review and explanation.
    4. The parties should each be advised to obtain independent legal counsel to assist and to advise them throughout the mediation.
    5. The mediation can be suspended or terminated at the request of either party. The mediator shall suspend or terminate the mediation if it appears that the parties are acting in bad faith, if either party appears not to understand the negotiation, if the prospects of achieving a responsible agreement appear unlikely, or if the needs and interest of minor children are not being considered by the parties. In the event of a suspension, the mediator may suggest a referral for outside professional consultation.
    6. The cost of mediation in terms of hourly rates must be agreed upon (see G, above), as well as the method and responsibility for payment.
    7. The participants need to be advised both that the mediation process is confidential and also of the limits of confidentiality.
    8. Participants should be informed that the mediation process requires voluntary full disclosure. Each client in divorce mediation will be expected to submit and exchange with the other a statement of assets and liabilities, income information, and detailed budgets.

IV. Impartiality

The role of the mediator is to serve as an impartial third party with responsibility for structuring and monitoring the process of decision making between the parties. Mediators can serve effectively only when all parties to the dispute are confident of the mediator’s impartiality. Mediators shall disclose to both parties any ties, association, or potential biases they may have in working with either party. This includes acknowledgment of any prior relationship with either of the parties to the dispute. Mediators have a duty to disclose at the earliest appropriate time to the parties involved all contacts between the mediator(s) and either party or any other relevant third party, including the clients’ attorney. Mediators assume the responsibility for withdrawing from a case if they believe or perceive that there is a clear conflict of interest, or if a bias emerges that interferes with the mediation, regardless of the expressed desires of the parties.

  1. Nonconcurrence. Impartiality is not the same as neutrality in questions of fairness. Although a mediator is the facilitator, and not a party to the negotiations, should parties come to an agreement that the mediator finds inherently unfair, the mediator is expected to indicate his or her nonconcurrence with the derision in writing.
  2. Role Conflict. In order to avoid actual or potential conflicts of interest, a lawyer-mediator should not represent either party before, during, or after the mediation process. If the mediator is a mental health professional, there should be no professional relationship with the participants in counseling or therapy, before, during, or after the mediation process. In the event the mediator has represented or counseled one of the parties beforehand, the mediator should not undertake the role of mediator unless the subject matter of the earlier representation or counseling is clearly distinct from the mediation issues and unless both participants, having been advised of the prior representation or counseling, choose for the mediator to proceed, by written waiver of the parties affected or upon appeal and opinion of approval of the MCI Ethics Committee.It is questionable whether mediators should work with either client in a prior or subsequent therapeutic, legal, or other professional relation. Such dual relations should be entered upon, if at all, only with sensitivity to possible conflicts of interest involved and with proper advisement to clients regarding such potential conflicts, by written waiver of the parties affected, or upon appeal and opinion of approval of the MCI Ethics Committee.
  3. Best Interests of the Children. While the mediator has a duty to be impartial, the mediator also has a responsibility to promote the best interests of the children and other persons who are unable to give voluntary, informed consent. Mediators take special care to protect these persons’ best interests. The mediator has a duty to assist parents to examine the separate and individual needs of their children, to consider those needs apart from their own desires for any particular formula for sharing their children, which might be motivated by factors involved in the relationship between the parents and not directly related to the best interests of their children. If the mediator believes that any proposed agreement between the parties does not protect the best interests of the children, the mediator has a duty to inform the couple of his or her belief and its basis.

V. Professional Relationships

Mediators shall acknowledge and respect the needs, special competencies, and obligations of their colleagues in mediation and other professions.

  1. Intraprofessional Relations. Mediators acknowledge their limits and respect the areas of competence of related professions. They encourage the use of professional, technical, and administrative resources that serve the best interests of clients. A mediator shall not enter any dispute that is being mediated by another mediator without a clear understanding that the first relationship has been terminated. When co-mediating, each mediator has a responsibility to keep the other mediator(s) informed of developments essential to an effective collaborative effort. While present with clients, the mediator should avoid direct criticism of the co – mediator.
  2. Professional Decorum. Mediators, whether functioning independently or as part of an organization, shall act professionally and with proper decorum at all times. When mediators function as employees of organizations providing mediation services, or as independent mediators serving clients in an organizational context, mediators seek to support the integrity, reputation, and proprietary rights of the host organization. When it is judged necessary in a client’s interest to question an individual’s or an organization’s programs or policies, mediators attempt to effect change by constructive action before disclosing confidential information acquired in their professional roles.

VI. Informed Decisions and Fair Agreements

The mediator has a duty to ensure that clients make informed decisions. The mediator should ensure that the parties have been advised to obtain legal counsel and a sufficient understanding of relevant statutory and case law, as well as local judicial traditions, to make an informed consent on the issue involved. In addition, the mediator should ensure that each of the participants has an understanding of, as well as a reasonable opportunity to weigh, the application of appropriate legal information to his or her situation before reaching an agreement. The mediator has a duty to ensure that the understanding of each of the parties with respect to the relevant information is adequate to allow balanced negotiation. When necessary, the mediator shall refer the parties to experts for consultation and/or evaluation. The mediator shall ensure that there is full financial disclosure and development of relevant factual information in the mediation process.

  1. Fair Agreements. While mediators must be impartial between participants, they must not be neutral toward fairness. The objective of family mediation is not a settlement at any cost; rather, it is the achievement of a fair and reasonable agreement. While there can be no constant definition of “fair and reasonable,” it is essential that mediators disassociate themselves from agreements that they perceive to be so far outside the parameters of fairness (as established by case precedent, legal requirements, and learned common sense) that they do not believe them to be fair and reasonable. In such an event, mediators should withdraw from mediation and terminate the process.
  2. Understanding Decisions. The mediator should ensure that each person fully understands the implications and the ramifications of the options available. In this regard, the mediator should attempt to assist each person in understanding the interplay of his or her own emotions with the decision-making process during the mediation.
  3. Noncoercive Negotiations. The mediator has a duty to ensure a balanced dialogue and must attempt to defuse any manipulative or intimidating negotiating techniques utilized by either of the parties. If the mediator finds that it is not possible to eliminate such bargaining techniques from the process, he or she should not permit the mediation to proceed.
  4. Independent Legal Counsel. The mediator has a duty to advise the mediation participants to obtain legal counsel and advice prior to reaching an agreement. A referral for legal advice should be made before the decision-making process, and not after the participants have already reached a full accord to which they may have made an emotional commitment. Mediators, including attorney mediators, shall not advise either party as to their legal rights or responsibilities so as to direct the parties’ decision on a given issue. Each party must be referred to independent legal counsel for that advice. A single attorney to advise the participants as to the law in the course of a mediation is not a substitute for independent legal counsel. Mediators should avoid any ongoing referral relationship with an attorney that hampers the independence of the attorney’s judgment in giving advice or reviewing the agreement.

VII. Public Statements and Promotional Activities

Public statements, announcements of services, advertising, and promotional activities of divorce mediators serve the purpose of helping the public make informed judgments and choices about divorce mediation and its alternatives. Mediators shall represent accurately and objectively their professional qualifications, affiliations, and functions, as well as those of the institutions or organizations with which they or their statements may be associated. In public statements providing information or professional opinions related to divorce mediation, mediators base their statements on acceptable professional opinion, current knowledge, and research data, with full recognition of the limits and uncertainties of such sources.

  1. Professional Identification. When announcing or advertising professional services, mediators may list the following information to describe the provider and services offered: name, relevant academic degrees, relevant training in mediation, date, type and level of certification or licensure, appropriate professional affiliations and membership status, address, telephone number, office hours, a brief listing of the type of services provided, an appropriate presentation of fee information, and foreign languages spoken. Additional relevant or important consumer information may be included, if not prohibited by other sections of the professional standards.
  2. Misrepresentation or Abuse in Public Announcements. In announcing or advertising the availability of divorce mediation services, products, or publications, mediators do not represent their affiliations with any organizations in a manner that falsely implies sponsorship or certification by those organizations. Public statements, including but not limited to communication by means of periodical, book, list, directory, television, radio, or motion picture, shall not contain (1) false, fraudulent, misleading, deceptive, or unfair statements; (2) misrepresentation of facts, or statements likely to mislead or deceive by making only a partial disclosure of relevant facts; (3) testimonials from clients regarding the quality of mediators’ services or products; (4) statements intended or likely to appeal to clients’ fears, anxieties, or emotions concerning the possible results of failure to obtain the offered services; or (5) statements intended or likely to create false or unjustified expectations of favorable results.
  3. Solicitation. Mediators shall not compensate or give anything of value to a representative of the press, radio, television, or other communication medium in anticipation of or in return for professional publicity in a news item. This does not preclude payments for publicity and/or advertising.
  4. Accurate and Adequate Information. When functioning as teachers or trainers of mediation, mediators shall ensure that announcements and publicity are accurate and not misleading, particularly with regard to whether or not the event involved is being presented and intended as a training event for divorce mediators. Announcements, brochures, or advertisements describing workshop, seminars, or other educational programs accurately present intended audience and eligibility requirements, educational objectives, and nature of the material to be covered, as well as the education, training, and experience of the mediators presenting the programs, and any fees involved.
  5. Obligation to Correct. Mediators shall accept the obligation to correct others who, when representing the mediator’s professional qualifications or associations with products or services, do so in a manner incompatible with these guidelines.

VIII. Research

Mediators recognize that research is essential to the advancement of knowledge and that all investigations must be conducted with respect for the rights and dignity of participants and with concern for their welfare. Specifically, the conditions of the Human Subjects Experimentation, as designated by the Department of Health and Human Services of the United States Federal Government, shall be adhered to. When involved in research, mediators shall advise research participants of the funding source of sponsorship of the research and inform the participants of the nature of the study, either before or after the data collection.

  1. Freedom of Choice. Ethical practice requires the investigator to respect the individual’s freedom to decline to participate in, or to withdraw from, research. The obligation to protect this freedom requires special vigilance when the investigator is in a position of power over the participant, as, for example, when the participant is a student, client, employee, or otherwise is in a dual relationship with the investigator.Ethically acceptable research begins with the establishment of a clear and fair agreement between the investigator and the research participant that clarifies the responsibilities of each. The investigator has the obligation to honor all promises and commitments included in that agreement.

X. Public Mediation

The judiciary may mandate mediation programs to assist in the disposition of child custody and visitation disputes, but such programs should not be established for the principal purpose of abdicating judicial responsibility or reducing caseloads. The court mediator should have no right to ex parte communications without the express knowledge and/or permission of the parties. The court mediator shall make no recommendations to the court and should have no decision-making capacity with regard to the couple. Such an arrangement is not mediation, but non-binding arbitration.

References

Barber, B. “Regulation and the Professions.” Hastings Center Report, February 1980, pp. 34-36.

Carr-Saunders, A. M. Professions: Their Organization and Place in Society. Herbert Spencer Lectures, 2nd Series, 1915-1930. Oxford: Clarendon Press, 1930.

Freedman, M. H. Lawyers’ Ethics in an Adversary System. New York: Bobbs-Merrill, 1975.

Friedson, E. Professional Dominance. Chicago: Aldine, 1970.

Greenwood, E. “Attributes of a Profession.” Social Work, 1957, 23 (3), 26-34.

Mills, D. H. “Ethics Education and Adjudication Within Psychology.” American Psychologist, 1984, 39 (6), 669-675.

Milne, A. L. “The Development of Parameters of Practice for Divorce Mediation.” In J. A. Lemmon (Ed.), Ethics, Standards, and Professional Challenges. Mediation Quarterly, no. 4. San Francisco: Jossey-Bass, 1984.

Moore, W. E. The Professions: Roles and Rules. New York: Russell Sage Foundation, 1970.

Carl D. Schneider, Ph.D., is a two-time vice-president of the Mediation Council of Illinois and director of the Divorce Mediation Service in Park Ridge, Illinois.

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