BIMS : Code of Conduct for Mediators

 

 

The Board of Directors of Bangladesh International Mediation Society for the purpose of effective mediation of disputes framed this Code of Conduct for the mediators.

Code I. Self-Determination

  1. A mediator shall conduct mediation based on the principle of party self-determination. Self-determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome, including mediator selection, process design, and participating in or terminating the process.
  1. Although party self-determination for process design is a fundamental principle of mediation practice, a mediator may need to balance party self-determination with a mediator’s duty to conduct a quality process in accordance with these codes.
  1. A mediator can not personally ensure that each party has made free and informed choices to reach particular decisions, but, where appropriate, a mediator should make the parties aware of the importance of consulting other professionals to help them make informed choices.
  1. A mediator shall continuously assess the capacity of the parties to mediate. A mediator shall make appropriate modifications to the process if there is concern about a party’s ability to make voluntary and uncoerced decisions. A mediator shall terminate the mediation process when a mediator believes a party can not effectively participate.
  1. A mediator’s commitment is to the parties and the mediation process. A mediator shall not undermine party self-determination process. A mediator shall not undermine party self-determination for reasons such as obtaining higher settlement rates, ego satisfaction, increased fees, or outside pressure from court personnel, program administrators, provider organizations, or the media.

Code II.       Mediator’s Competence

  1. A mediator should be qualified by training, education and experience to undertake a mediation. A mediator should make information regarding the mediator’s training, education, experience, and approach to conducting mediation available to the parties.
  1. If a mediator can not conduct the mediation competently, the mediator shall advise the parties as soon as is practicable and take appropriate steps to address the situation, including, but not limited to, requesting appropriate assistance or withdrawing.
  1. If a mediator’s ability to conduct mediation is impaired by drugs, alcohol, medication, or otherwise, the mediator shall not conduct the mediation.
  1. A mediator should attend educational and training programs, and engage in self-assessment and peer consultation to maintain and enhance the mediator’s knowledge and skills related to mediation.

Code III.     Safety of Mediation

A. Consistent with applicable statutes, court rules and protocols, reasonable efforts shall be made throughout the mediation process to screen for the presence of an impediment that would make mediation physically or emotionally unsafe for any participant, or that would impede the achievement of a voluntary and safe resolution of issues. Examples of impediments to the mediation process include: domestic abuse; neglect or abuse of a child; status as a protected individual or vulnerable adult; mental illness or other mental impairment; and inability to understand or communicate in the language in which mediation will be conducted.

  1. In general, “reasonable efforts” may include meeting separately with the parties prior to a joint session or administering screening tools.
  1. In domestic relations cases, “reasonable efforts” should include meeting separately with the parties prior to a joint session and administering the “Mediator Screening Protocol” for domestic violence.
  2. In an impediment to mediation exists and can not be overcome by accommodations that specifically mitigate it, the mediation process should not be continued unless:
  3. After being provided with information about the mediation process, a party at risk freely requests mediation or gives informed consent to it;
  1. The mediator has training, knowledge, or experience to address the impediment;
  1. The mediator has discussed with the party at risk whether an attorney, advocate, or other support person should attend the mediation; and
  1. The mediator has assessed that a party can determine and safely convey and advocate for his or her needs and interests without coercion, fear of violence, or other repercussions or consequences that would put the party at risk.
  1. Where it appears that minor children or vulnerable adults may be affected by an agreement, a mediator should encourage participants to consider their safety.

Code IV.     Confidentiality

  1. 1. As soon as practicable and as necessary throughout the mediation process, the mediator should:
  2. inform the participants of the mediator’s obligation regarding confidentiality;
  1. discuss with the parties their expectations of confidentiality; and
  1. discuss confidentiality of private sessions with parties or participants prior to those session occurring.
  1. The mediator should include a statement concerning the obligations of confidentiality in a written agreement to mediate.
  1. If ordered or requested to testify or to produce documents, a mediator shall promptly inform the parties or their counsel. The mediator should consider confidentiality obligations in determining how to respond.
  1. If a mediator participates in teaching, research, or evaluation of mediation, the mediator should protect the anonymity of the parties and abide by the obligations and agreements regarding confidentiality.
  1. If a mediator, as authorized by law, or professional code of ethics, reveals information acquired in the mediation process, the mediator should consider the safety of persons at risk of physical harm by release.

 

Code V.       Impartiality

  1. A mediator shall conduct mediation in an impartial manner and avoid conduct that gives the appearance of partiality. “Impartial manner” means freedom from favoritism, bias, or prejudice in word, action or appearance, and includes a commitment to assist all participants.
  1. A mediator should act with impartiality and without prejudice based on any participant’s personal characteristics, background, values and beliefs, or performance during mediation.
  1. A mediator should neither give nor accept gift, favour, loan, or other item of value that raises a question as to the mediator’s action or perceived impartiality.
  1. A mediator should decline a mediation or withdraw from mediation if the mediator can not conduct it in an impartial manner, regardless of the express agreement of the parties.

Code VI.     Independence

If there are any circumstances that may, or may be seen to, affect a mediator’s independence or give rise to a conflict of interests, the mediator must disclose those circumstances to the parties before acting or continuing to act. Such circumstances include:

  1. i) any personal or business relationship with one or more of the parties:
  1. ii) any financial or other interest, direct or indirect, in the outcome of the mediation;

iii)      the mediator, or a member of his firms, having acted in any capacity other than mediator for one or more of the parties.

Code VII     Quality of the Process

A mediator shall work to ensure a quality process and to encourage mutual respect among the parties. A quality process requires a commitment by a mediator to diligence and procedural fairness. There should be adequate opportunity for each party in the mediation to participate in the discussions. The parties decide when and under what conditions they will reach an agreement or terminate a mediation.

Code VIII.   Fees and Charges

  1. A mediator shall provide each party true and complete information about mediation fees, expenses and any other actual or potential charges that may be incurred in connection with a mediation.
  1. A mediator shall not charge fees in a manner that impairs a mediator’s impartiality.
  1. A mediator should not enter into a fee agreement which is contingent upon the result of the mediation or amount of the settlement.
  1. While a mediator may accept unequal fee payments from the parties, a mediator should not allow such a fee arrangement to adversely impact the mediator’s ability to conduct a mediation in an impartial manner.
  1. A mediator’s fee arrangement should be in writing.

Code IX.     Advancement of Mediation Practice

  1. A mediator should act in a manner that advance the practice of mediation. A mediator promotes this Code by engaging in some or all of the following:
  2. i) Fostering diversity within the field of mediation.
  1. ii) Striving to make mediation accessible to those who elect to use it including providing services at a reduced rate or on a probono basis as appropriate.

iii)      Participating in research when given the opportunity, including obtaining participant feedback when appropriate.

  1. iv) Participating in outreach and education efforts to assist the public in developing an improved understanding of, and appreciation for, mediation.
  1. v) Assisting newer mediators through training, mentoring and networking.
  1. A mediator should demonstrate respect for differing points of view within the field, seek to learn from other mediators and work together with other mediators to improve the profession and better serve people in conflict.

Code X.      The End of Mediation

The mediator must take all appropriate measures to ensure that any agreement is reached by all parties through knowing and informed consent, and that all parties understand the terms of the agreement. The mediator must inform the parties as to how they may formalize the agreement and the possibilities for making the agreement enforceable.