As all professionals know, and lawyers in particular appreciate, questions of ethics in the conduct of one’s practice are seldom clear cut. Everyone will agree that the basic principles themselves are fairly straightforward and can be expressed in simple terms. However the problem always arises when particular issues, usually unexpected, crop up which require the application of general principles to circumstances which are not ‘black and white’.
So it is with mediation. The ethical principles by which mediators are expected to act are not controversial, but their application to situations which arise in mediation is not always the subject of agreement between mediators. Curiously, or perhaps inevitably, the more experienced mediators sometimes have greater difficulty giving a straight ‘yes or no’ answer to any particular problem which may arise. This has been borne out in many conferences and seminars where particular problems have been posed to a group of mediators and there has rarely been unanimity on the approach to be adopted in terms of ethical conduct.
There are, of course, two issues to be considered: the ethical conduct of the mediator and the ethical conduct of the lawyers representing clients in mediation. Each issue merits its own chapter, if not a complete volume, but as far as this contribution is concerned I shall deal solely with the first issue – the ethical standards expected of mediators – and try to give some examples of problems which arise to which there could be more than one ethical answer. I shall also consider the possibility of regulation – an evergreen topic of conversation between mediators. In addition, thanks to my American colleague Larissa Lieberman, I will incorporate some of the attempts to create a regulatory regime in the United States, where mediation has been practised for decades.
The European Code of Conduct for Mediators expresses in simple terms the basic requirements which the European Commission considered were necessary for the proper conduct of mediations. They are similar to those set out in the United States in the Model Standards for Conduct of Mediators. In summary, they deal with: impartiality, no conflict of interest, competence, confidentiality, quality of the process, advertising and solicitation, transparency over fees and charges, advancement of the mediation practice and self-determination. Many of these areas overlap but, in the main, they are universally accepted as the basic ethical requirements for any mediator. There is also the view that the type of mediation being conducted could influence the extent to which ethical principles may apply. The generally accepted classification is between facilitative, evaluative and transformative mediation. ‘Facilitative’ mediation which stresses the importance of the mediator’s neutrality and party autonomy to help the parties develop their own problem solving capacity limits the ability of the mediator to ‘steer’ or guide the parties towards a settlement. ‘Evaluative’ mediation which helps the parties to assess the strength of their position and their opponents and the potential settlements based upon law and practice again creates a different problem for mediators as to how far they should ‘push’ or ‘steer’ the parties towards a particular settlement. Lastly, ‘transformative’ mediation which focuses on personal growth enabling the parties to develop a better recognition of their own goals, values and capacities and a greater empathy for the concerns of others brings with it its own different applications of ethical standards as far as the mediator is concerned. This contribution is far too short to consider all the ramifications in respect of each of these mediation styles, and therefore of necessity it will set out general principles and, in particular, consider the attempts made in the United States and Australia to regulate the process to see whether or not some form of regulation ought to be considered in the UK.
Regulation is always a burning issue. Some attempt at regulation of standards has been promulgated, notably by the International Mediation Institute but also by other countries in the European Union. The European Commission has toyed with Regulation for some time but, as yet, has been unable to draft Rules acceptable to all 27 Member States. The proselytisers of regulation argue that they want parties to have confidence in mediation, particularly in those countries where it is still a relatively new process, and perceive a need to hold mediators accountable in order to enable the consumers to have trust in the process. However, any attempt to standardize an ethical code for mediators creates its own difficulties and challenges. Any code has to take account of the interdisciplinary nature of the mediation and accommodate the flexibility of the process which most mediators would consider absolutely essential for any successful mediation. There is an understandable reluctance to overburden mediators and the mediation process with regulation, but perhaps the most important and most difficult question is deciding which body should regulate mediators and what sanctions ought that organization apply. The cost of an effective organization to regulate the conduct of mediators and adjudicate allegations of breaches of a Code is likely to prove prohibitive and raises an even more contentious issue as to how it should be funded. It is hardly likely that the mediators themselves would consider funding this, and certainly it is not something which any Government in the current economic climate would consider to be an essential part of public expenditure.
In Europe, various Member States have enacted codes of conduct applicable for mediators acting in their own jurisdiction. Most of these relate to Court-appointed mediations. The European Code of Conduct for Mediators was promulgated by the EU Commission before the EU Directive on ADR was implemented by the European Parliament. This Code of Conduct sets out a number of principles to which individual mediators can voluntarily decide to commit, under their own responsibility. It was intended to be applicable to all kinds of mediation in civil and commercial matters. For the purposes of the Code, mediation was defined as “any process where two or more parties agree to the appointment of a third party – hereinafter ‘the mediator’ – to help the parties to solve the dispute by reaching an agreement without adjudication and regardless of how that process may be called or commonly referred to in each Member State’. Adherence to the Code is specifically without prejudice to national legislation or rules regulating individual professions. The Code itself deals with the usual basic principles that one would expect, they are:

1. Independence and impartiality;

2. The fairness of the process and the procedure;

3. Fees;

4. Confidentiality;

5. Enforcement of any awards arrived at the conclusion of the mediation.

The Code itself is fairly basic, of necessity when one is dealing with 27 Member States, each with its own view about the effect or otherwise of mediation. Moreover, there is no compulsion about the Code and, as yet, no regulation to enforce it.
As already stated, the real and most practical difficulty with any ethical code is enforcement. Most responsible mediation providers have some form of code with which they expect their panel of mediators to comply, and if one of its mediators fails to do so, then the mediation provider itself may take action against the mediator. In addition, the Mediation Provider may be at risk of suit by the parties who have been disadvantaged as a result.
In the United States, there have been various attempts to set standards. It is instructive to consider what success such attempts have had. There is no clear regulation of mediator ethics. There is no State in the United States which licences mediators. No State has a binding ethical code for all mediators with a formal disciplinary board. However, regulation is increasing; at least 27 States have statutory or judiciary-appointed standards of conduct and formal disciplinary boards for Court-appointed mediators. Those rules often specify the qualifications necessary for such mediators. As with the UK, mediator organizations and private ADR providers have adopted their own standard. There are some specialized areas of mediation, for example, child custody, patients and those suffering with disabilities, where individual organizations have set their own standards for the mediators who mediate such disputes. All of the standards are either guidelines for mediators or model rules that act as guidance for States in creating standards. As such, none of them are actually enforceable unless a particular State has enacted them into law.
Moral Standards of Conduct for Mediators was first promulgated in 1994 and revised in 2005 by the American Bar Association section of Dispute Resolution, The American Arbitration Association and the Association for Conflict Resolution. These serve as guidelines. The areas covered, as one would expect, are self-determination, impartiality, conflicts of interest, competence, confidentiality, qualitative process, advertising and solicitation, fees and other charges and advancement of the mediation practice. The basic criticism levelled against the Moral Standard is that there is insufficient specific detail about the penalties if the outline values are at odds with each other.
The uniform Mediation Act approved by the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association provided guidelines for States in enacting laws pertaining to mediation. By 2011 ten States, plus the District of Columbia, have approved some version of the Uniform Mediation Act; this includes provisions regulating confidentiality and conflicts of interest.
The Model Rules for The Lawyer acting as a Third Party Neutral (2002) promulgated by the Georgetown Commission on Ethics and Standards of Practice in ADR provide model rules for states to adopt regarding ethical responsibility of lawyers serving as third party neutrals. These rules include rules on diligence and competence, confidentiality, impartiality, conflicts of interest, fees, fairness and integrity of the process.
Lastly, the ABA Model Rules of Professional Conduct, edited in 2005 to add two new rules expressly referring to mediators, provides for regulation as far as lawyers are concerned when mediating. In summary, it requires mediators to distinguish their role clearly from representing counsel. Rule 2.4 defines the distinction thus:

(a) a lawyer serves as a third party neutral when the lawyer assists two or more persons who are not clients of the lawyer to reach a solution of a dispute or other matter between them. Service as a third-party neutral may include service as an arbitrator, a mediator or in such other capacity as to enable the lawyer to assist the parties to resolve the matter.

(b) A lawyer serving as a third party neutral should inform unrepresented parties that the lawyer is not representing them. When the lawyer knows or reasonably should know that the party does not understand the lawyer’s role in the matter, the lawyer should explain the difference between the lawyer’s role as a third-party neutral and a lawyer’s role as one who represents a client.

Rule 1.12 which applies to a former judge, arbitrator, mediator or other third party neutral provides guidance for mediators for resolving conflicts of interest that might arise from having previously served in a neutral capacity. The rule provides:

(a) Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with the matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer or law clerk to such person or as an arbitrator, mediator or other third party neutral, unless all parties to the proceeding give informed consent, confirmed in writing.

(b) A lawyer shall not negotiate for employment with any person who is involved as a party or as a lawyer for a party in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative officer or as an arbitrator, mediator or other third party neutral. A lawyer serving as a law clerk to a judge or other adjudicative officer may negotiate for employment with a party or lawyer involved in a matter in which the clerk is participating personally and substantially but only after the lawyer has notified the judge or other adjudicative officer.

(c) If a lawyer is disqualified by paragraph (a) no lawyer in any firm with which the lawyer is associated may knowingly undertake or continue representation in a matter unless:

(1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and

(2) written notice is promptly given to the parties and any appropriate tribunal to enable them to ascertain compliance within the provision of the law.

(d) An arbitrator selected as a partisan of a party in multimember arbitration panel is not prohibited from subsequently representing that party.

Professor Menkel-Meadow’s basic principles as set out in The Lawyer as a Consensus: Ethics for a New Practice (2002) provide a basic ethical framework for mediators, neutral consensus builders or facilitators. The rules are designed to ensure broad party and stakeholder participation and provide opportunities for participants to agree on procedural and ground rules, as well as on decision rules for agreements. They encourage participant recognition of both individual and joint leaders of interests and encourage parties to express reasons and justifications for their views, needs and offers. They facilitate creative and tailored solutions to meet the parties’ needs and objectives and provide a place of fair hearing and respect for all parties. They also provide for the facilitation of capacity building and parties to negotiate on their own behalf.
Interestingly, they also provide for the consideration of the practicality and enforcement of agreements reached, provided of course that they must be free from bias and conflicts of interest and avoids unjust, unfair or unconscionable agreements wherever possible. The latter is an intriguing provision. When discussing the European Code of Conduct for Mediators, a long debate was held (driven mainly by the European Consumer Association representative) as to whether or not there should be included within the Code a provision that a mediator should not allow the parties to enter into what was described as an ‘unconscionable bargain’. Experienced mediators will readily appreciate that the difficulty with such a proposition is that frequently mediators are unaware of the full extent of the parties’ reasons for entering any particular settlement. Once the mediator is put into the position of assuming an obligation to judge whether or not an agreement is ‘fair or unconscionable’, any challenge to the agreement after the mediation inevitably will involve the mediator himself. In my opinion, this oversteps the universally accepted principle of an independent mediator whose task is to facilitate an agreement without actually imposing his own resolution.
The difficulty of course arises if a mediation settlement agreement is patently unworkable. In those circumstances, it is generally accepted, and certainly my view, that it is the mediator’s obligation to point this out to the parties’ representatives and ensure as far as is possible that the defect is remedied – a fortiori, if an agreement is patently unlawful, or breaches fiscal or other legislative provisions. In such circumstances, it would be quite wrong for a mediator to ignore the problem, and his obligation is to make the parties’ representatives aware of the potential difficulty and assist if he can in resolving it. In short, pointing out potential difficulties in a settlement agreement is a prudent and necessary part of a mediator’s obligations to ensure that the parties are entering into the settlement with full knowledge and informed consent. This is a far cry from assessing the fairness of the agreed terms: allowing an agreement to be signed by the parties in the knowledge that, sooner or later, it could be open to challenge not only does not serve the parties’ interests but also inevitably will involve the mediator at some stage in the future in some form of suit, particularly if he is forced to acknowledge that he was aware of the difficulty and kept silent.
There are obviously ethical issues where a party is not represented by lawyers. The difficulty is assessing how much assistance a mediator can give without actually being considered to be advising the party. This is potentially one of the most difficult situations for a mediator. It is my practice to make arrangements with an unrepresented party for him to have access to a lawyer for advice by telephone, if necessary during the mediation but in any event on the proposed mediation settlement. Failing all else, it is prudent to suggest that the parties do not actually complete the agreement until the individual who is unrepresented has had the benefit of legal advice upon it. This is a far safer way to proceed and protects both parties and the mediator from any suggestion of coercion or lack of informed consent to any settlement.
It is generally accepted that the mediator should explain his role and the process, discuss obligations concerning confidentiality and the ground rules for any sessions in private with one or other of the parties. It is also beyond doubt that a mediator should disclose any potential grounds of bias or conflict of interest which may give rise to questions about the mediator’s impartiality. Often overlooked is the mediator’s obligation to advise the parties that they may suspend or terminate the mediation in circumstances where they either conclude there is no useful purpose being served by continuing with it or if one or other party has said or done something which causes them to doubt the bona fides of the other. The mediator should also have reserved to himself the right to terminate the mediation if he learns of matters which make it impossible for him to continue. It is not only good practice but essential that all mediators should ensure that parties sign a mediation agreement which clearly establishes the contractual basis of the mediation.
One of the difficulties with the purist view of self-determination by the parties is that the primary role of the mediator is to facilitate a voluntary resolution of the dispute. However, most experienced mediators will know that there are situations which arise when the parties do require and, indeed, some request assistance from the mediator to get them towards a settlement. In such a situation, can it be right for a mediator to refuse? How the help is given, and to what extent, inevitably will depend upon the circumstances, the nature of the dispute, the mediator’s relationship with the parties and the ability of their respective lawyers to assist. Most will agree that it would be quite wrong and unethical for a mediator to advise a client in the absence of their lawyer. In some instances, particularly Court-appointed mediations, there is a pressure upon the parties and the mediator to achieve a settlement. Moreover, mediators on a personal level, whatever their protestations to the contrary may be, often like to be able to say that they have ‘resolved a dispute’. Some parties may even chose mediators upon the basis of their settlement rate. This leads to another difficulty which I shall turn to later when dealing with ethical advertising.
The issue of self-determination raises the question: “how far should a mediator use persuasive tactics to push the parties towards a negotiated settlement?” Other than in general terms, this is an impossible question to answer. No party should ever feel under pressure from the mediator; on the other hand, mediators have been criticized for failing to ‘test us’ on our case. Reality testing is a feature which is taught, and indeed practised, by most mediators, but how far does this go? Like all ethical principles, it is a question of degree. If the mediator senses that there is resistance to a particular line, then of course he should stop. On the other hand, there may be situations where he is unaware that his attempt to push the parties towards a settlement is becoming oppressive. A competent lawyer will be quick to ‘call off’ an overzealous mediator and protect his client from any undue pressure. Inevitably, however, there are situations beyond the control of the mediator in which parties are bound to feel pressurized in mediation. A party with no legal defence may well feel there is a pressure upon them to achieve a deal to avoid the inevitability of a judgement. There is hardly a mediation during which one party will not assert an intention to litigate in the absence of settlement. Almost as a matter of course the mediator will be asked to take a message accompanying ‘a last and final offer’ that failure to accept will precipitate an open or without prejudice offer in the litigation in similar or lesser terms. Is this coercion? Most of us would say obviously not because it reflects the reality of the situation. However, one person’s reality is another person’s pressure.
The quintessential rule is that a mediator should promote honesty and candour between and among participants and never knowingly misrepresent any material fact or circumstance in the course of a mediation. This is also a principle which is easily stated but more difficult to apply in a particular circumstance. Persuading parties often involves ‘manipulating’ information available to the parties and the mediator. ‘Reframing’ offers and presenting facts in a positive light are standard techniques which every mediator uses. More difficult yet is the situation, which quite often occurs, where one party says “I want to tell you this but I don’t want you to pass it on to the other side”. One cannot erase the information from one’s mind, and thus, in spite of every effort not to use it deliberately there is every possibility that one might inadvertently say or hint something which reveals the knowledge that has been given to you in confidence. Cynics might suggest that is precisely the reason why the information was given in the first place!
This gives rise to the next question as to what is adequate disclosure by the mediator to the parties. Most people would agree that a mediator should be totally open and frank. Usually the standards draw a distinction between an affirmative misrepresentation of material facts and passive non-disclosures. Some scholars would argue that it is unethical to condone passive non-disclosures by mediators; that again is a moot point. There are ways and means of indicating that one is in possession of knowledge that one cannot share. If the other side suspects that this is the position, then, in my view, the best solution is for the mediator to tell the other party that for various reasons he believes that the other is aware of the fact of this information and, in the best interests of getting to a settlement, they ought to share it. Again, each circumstance is different and the mediator must just simply use his best judgement guided by the principles that he must no knowingly mislead.
Even evaluating a circumstance for parties is not without difficulty. Overzealous mediators often exaggerate the risks of non-settlement and overemphasize the benefits of settlement. If the parties are unrepresented, this is an area fraught with peril for the incautious mediator. It is good practice, as well as a prudent precaution, for any such messages to be given to both parties in plenary rather than in private and to be done in a non-directive fashion: Do you know how much a trial will cost? Have you any idea of the difficulties involved in preparing for trial? Do you know what remedies are available to the court? Answers given by a mediator in such an environment, especially if couched in terms “I suggest that you seek advice as to…etc.” are less likely to give rise to a complaint of oppressive or coercive behaviour by the mediator. If the parties are represented by competent lawyers, they will be in a position to resist any of this overzealous interference by a mediator.
One of the issues raised by the principle of self-determination, frequently encountered by mediators, is the overzealous lawyer who is effectively ‘calling the shots’. It is difficult to judge how far mediators should intervene between a client and his lawyer. It is even more difficult if one suspects that the lawyers’ judgement is in fact unsound and even more difficult if he has simply got the law wrong. In the latter case, it is my practice to take the lawyer aside and have a quiet chat with him about the law, if necessary referring him to a particular authority or statute which gives me cause to doubt the accuracy of the advice being given. If the lawyer refuses to accept it, there is not much one can do. I doubt whether anyone would consider that it would be ethical for a mediator to advise the client to seek advice from another lawyer. If a discussion with the lawyer in the presence of his client about the relevant legal principles fails to put the client on guard, then there is little else a mediator can properly do. In extreme circumstances, I have held a ‘tutorial’ with both sets of lawyers discussing the law in the presence of their respective clients, so that they can as far as possible make an informed judgement as to the risks of litigation. One of the ethics problems often posed in seminars is the dilemma facing a mediator who learns of a recent court decision which completely undermines one side’s legal argument, of which both parties’ lawyers are ignorant. Should the mediator keep the information to himself: generally the universal answer is ‘no’. Should he inform one party and not the other: surprisingly this has never produced a uniform answer! Should the mediator in the opening plenary session reveal the decision without warning to the party who is disadvantaged by the case? Usually most mediators consider that would be unfair. The better approach is to inform the lawyers of the party who will be disadvantaged by the case and ask whether they are aware of it. If not, it gives them an opportunity to rethink his client’s position and advise his client on an appropriate stance to adopt.