The Supreme Court has approved Standards of Conduct for Mediators in Court-Connected Programs. The standards apply to all mediators, whether they are court staff, volunteers, or paid by the parties, when they are acting in state court-connected programs mediating matters in the Municipal Courts, or in the Superior Court. The standards are intended to instill and promote public confidence in the mediation process and to be a guide to mediators in discharging their professional responsibilities.
Chief Justice Deborah T. Poritz has appointed an Advisory Committee on Mediator Standards to assist mediators who seek advice on their interpretation and to monitor complaints about mediators received from attorneys or parties in mediation so as to provide data as to whether a more formal complaint process should be developed in the future. The Committee is drawn from members of the Committee on Complementary Dispute Resolution who are knowledgeable about the standards, and is chaired by Superior Court Judge Patricia Richmond LeBon. Members, all experienced mediators, include Sanford M. Jaffe, Esq., Director of the Center for Negotiation and Conflict Resolution at Rutgers University; Robert E. Nies, Esq.; Richard H. Steen, Esq. and Ronald M. Sturtz, Esq.
Questions about the standards, or a request for clarification from the Advisory Committee may be directed to:
Preamble, Scope and Purpose: These standards of conduct are intended to instill and promote public confidence in the mediation process and to be a guide to mediators in discharging their professional responsibilities. Public understanding and confidence are vital to a strong mediation program. Persons serving as mediators are responsible for conducting themselves in a manner that will merit the confidence of parties, members of the bar, and judges. These standards apply to all mediators when acting in state court-connected programs.
Definition of Mediation: Mediation is a process in which an impartial third party neutral (mediator) facilitates communication between disputing parties for the purpose of assisting them in reaching a mutually acceptable agreement. Mediators promote understanding, focus the parties on their interests, and assist the parties in developing options to make informed decisions that will promote settlement of the dispute. Mediators do not have authority to make decisions for the parties, or to impose a settlement.
When a mediator is unable to conduct the mediation in an impartial manner,
the mediator must withdraw from the process.
A. A mediator shall always avoid conflicts of interest when recommending the services of other professionals. If requested, a mediator may provide parties with information on professional referral services or associations that maintain rosters of qualified professionals.
B. (1) Related Matters: A mediator who has served as a third party neutral, or any professional member of that mediators firm/office, shall not subsequently represent or provide professional services for any party to the mediation proceeding in the same matter or in any related matter.
(2) Unrelated Matters: A mediator who has served as a third party neutral,
or any professional member of that mediators firm/office, shall not
subsequently represent or provide professional services for any party to the
mediation proceeding in any unrelated matter for a period of six months, unless
all parties consent after full disclosure.
A. A mediator appointed by the court shall have training and education in the mediation process, and shall have familiarity with the general principles of the subject matter involved in the case being mediated.
B. A mediator shall have information available for the parties regarding the mediators relevant training, education, and experience.
C. A mediator has an obligation to continuously strive to improve upon his or her professional skills, abilities, and knowledge of the mediation process.
Consistent with Rule 1:40-4, a mediator shall:
A. Preserve and maintain the confidentiality of all mediation proceedings and advise the parties of the Rules provisions;
B. Prior to the commencement of mediation, reach agreement with the parties concerning the limits and bounds of confidentiality and non-disclosure;
C. Conduct the mediation so as to provide the parties with the greatest protection of confidentiality afforded by court rule and mutually agreed to by the parties;
D. Maintain confidentiality in the storage and disposal of all records and remove all identifying information when such information is used for research, training, or statistical compilations, except minimum identifiers necessary to link research documents; and
E. Not use confidential information obtained in a mediation outside the mediation process.
A. Work to ensure a quality process and to encourage mutual respect among the parties, including a commitment by the mediator to diligence and to procedural fairness;
B. Assess the case and determine that it is appropriate and suitable for continuing the mediation;
C. Provide adequate opportunity for each party in the mediation to participate fully in the discussions, and allow the parties to decide when and under what conditions they will reach an agreement or terminate the mediation;
D. Not unnecessarily or inappropriately prolong a mediation session if it becomes apparent to the mediator that the case is unsuitable for mediation, or if one or more parties is unwilling or unable to participate in the mediation process in a meaningful manner;
E. Only accept cases when the mediator can satisfy the reasonable expectations of the parties concerning the timetable for the process, and not allow a mediation to be unduly delayed by the parties or their representatives; and
F. Where appropriate, recommend that parties seek outside professional advice or consider resolving their dispute through arbitration, counseling, neutral evaluation, or other processes.
A. Fees charged by the mediator shall be reasonable, taking into account, among other things, the subject area and the complexity of the matter, the expertise of the mediator, the time required, and the rates customary in the community.
B. A mediator shall provide parties with sufficient information about fees in writing at the outset of a mediation.
C. A mediator shall not enter into a fee agreement in which the amount of the fee is contingent upon the result of the mediation or the financial amount of the settlement.
*Note: Sources Used
1). Model Standards Of Conduct For Mediators (AAA, ABA & SPIDR).
2). Minnesota General Rules of Practice, Rule 114.
3). Ensuring Competence and Quality In Dispute Resolution Practice, Report #2 by SPIDR.
4). Colorado Office Of Dispute Resolution, Draft Report of ADR Professionals Qualifications Project Steering Committee.
5). Code Of Professional Ethics For The Practice Of Mediation, New Jersey Association of Professional Mediators.
6). CPR Institute for Dispute Resolution/Georgetown University Law Center Joint Commission on Ethics and Standards in ADR.