A mediator’s function is distinct from the role of legal advisor, representative or therapist. A mediator does not have a fiduciary relationship with the mediation parties. The mediation process is distinct from processes involving arbitration, litigation, summary jury trial, mini trial, settlement conference, or neutral evaluation.

These standards are intended to assist and guide public, private, voluntary and mandatory mediation. It is understood that the manner of implementation and mediator adherence to these standards may be influenced by variations in local law, court rule, or standards of other professions.

The Idaho Mediation Association views these standards as minimum standards that can reasonably be expected of mediators who are members of the Idaho Mediation Association. Mediators who are not members of the Idaho Mediation Association are encouraged to abide by these standards when acting in a meditative capacity.

A.        Facilitating the Process

          1.       Educating Parties about Mediation. A mediator should educate parties about the mediation process so that parties understand the mediation process and the role of the mediator.

          2.       Appropriateness of Mediation. A mediator should assess the parties’ willingness and ability to mediate.  A mediator should help the participants evaluate the benefits, risks and costs of mediation and the alternatives available to them.  If mediation is inappropriate, the mediator should decline to mediate and may suggest the parties seek another conflict resolution process.

          3.       Responsibility to Absentee Parties. A mediator should make an effort to assist the parties to consider the interests of absentee parties who are not being represented in the mediation process but will be affected by the subsequent outcome.

          4.       Identification of Issues. A mediator should attempt to gather information from the parties and assist them to mutually define and agree on issues to be addressed in the mediation.

          5.       Duty to Disclose. Prior to the mutual agreement to commence a mediation, the mediator has a duty to disclose to parties any conflict of interest with any party and biases or strong views relating to the issues to be mediated that may prevent the mediator from serving as a neutral mediator. This is a continuing and ongoing duty of the mediator. A mediator has a duty to assess his or her own ability and willingness to undertake mediation with the particular parties and the issues to be mediated. The mediator should disclose experience, training and any allegiance to participating parties when requested to do so by any party or representative of a party.

          6.       Disclosure by the Parties. A mediator should attempt to obtain from the mediation parties and their representatives disclosure of information that is relevant to the mediation process. If the mediator believes the parties are not acting in good faith, the mediator may suspend or terminate the process.

          7.       Procedures. A mediator should reach an understanding with the parties regarding the procedures to be followed in mediation. This includes but is not limited to the use of joint or separate sessions, caucus, confidentiality, involvement of additional parties, legal services, and conditions under which mediation may be terminated. Through verbal or written mutual agreement, the mediator and parties should define the rules by which the mediation is conducted, including the duties and responsibilities of each participant.

The mediator should explain to the parties that they (individually or collectively) or the mediator has the right to voluntarily suspend or terminate the process at any time, unless prohibited from doing so by court order or law.

          8.       Costs and Fees. A mediator has a duty to explain fees for payment of services. The fees for mediation services shall not be based on contingency fees or percentages of the outcome of any settlement. When setting fees, the mediator should attempt to make sure they are explicit, reasonable and commensurate with services to be performed.  Any prepaid unearned fees must be promptly returned to participants.

A mediator shall not pay or accept any commissions, rebates, or similar forms of remuneration for referral of clients for mediation services.

          9.       Independent Legal Counsel. Mediators should encourage parties to seek independent legal counsel at any time throughout the mediation process. A mediator will inform the parties that the mediator is not the legal counsel for any party and that mediation is not a substitute for legal counsel.

B.        Confidentiality

          1.       Exchange of Information. A mediator has a duty to foster the confidentiality of the process unless all parties agree to share information under specific circumstances.

          2.       Duty to Report. In relevant cases, a mediator should inform the parties that the mediator is compelled by law to report to appropriate authorities information about child abuse, neglect or abandonment. Mediators have a duty to report to the appropriate authorities any threat of physical injury to a mediation party or others, unless prohibited from doing so by law or other professional standards.

          3.       Legal Testimony. A mediator should refrain from testifying at court proceedings without the consent of all parties or an order of the court. If ordered to testify, the mediator should explain to the parties that the mediator may be compelled to testify as a result of a judicial order.

          4.       Storage and Disposal of Records. A mediator has a duty to store and dispose of mediation records in a confidential manner.

          5.       Release of Information. A mediator shall obtain mutual written consent of parties prior to release of information to others. When records concerning mediations are used for research or training purposes, the mediator will maintain participant confidentially and render anonymous all identifying information. 

C.        Impartiality

          1.       Prior Relationships. A mediator will disclose to the participants any prior affiliations the mediator may have had with the mediation parties prior to the start of mediation. If prior services have been provided to any of the participants, mediation should not proceed until the relationship has been disclosed to the mediation parties and the participants have voluntarily agreed to proceed with mediation.

          2.       Post-Mediation Relationships. A mediator should be aware that post-mediation professional or social relationships may compromise the availability of the mediator to serve as a neutral third party in future mediations with the same parties.

          3.       Independence of Mediator from Other Professional Roles. A mediator who is an attorney, mental health, or other professional shall not represent or counsel either party during or after the mediation process in matters pertaining to the instant mediation.  The mediator should refer these issues to appropriate outside resources.

          4.       Conflict of Interest. The mediator should have no financial or other interest in the outcome of the mediation other than the agreed upon fee arrangement. A mediator must disclose any circumstance to the participants that would cause a reasonable person to doubt the ability of the mediator to serve as a neutral mediator.

          5.       Promotion of Understanding. The primary responsibility for the resolution of the dispute rests with the participants. The mediator should assist the participants in reaching an informed and voluntary settlement. A mediator should not coerce a party into agreement or make a substantive decision for any participant. The mediator should promote understanding of the relevant facts and assist the parties in disclosure of relevant information prior to reaching agreement. The mediator may recommend that parties obtain expert consultation when additional knowledge or understanding is necessary.

          6.       Providing Professional Advice. A mediator may provide information to the parties when qualified by training and experience to do so. The mediator should only provide an interpretation of facts or law or advice based upon the mediator's area(s) of expertise.

D.        Concluding Mediation

          1.       With Agreement. When participants reach mutual agreement, the mediator should discuss the process for formalizing and implementing the memorandum of understanding.  When partial agreement is reached, the mediator should discuss the procedures available to resolve the remaining issues.

          2.       Without Agreement. If the mediator determines that the parties are unable or unwilling to participate in meaningful discussion or if they reach impasse the mediator should terminate the process. If the process is terminated the mediator may assist the parties in determining the next step and may refer them to other appropriate resources. 

E.        Publicity and Advertising

          1.       Truth in Advertising. A mediator should not make false or misleading statements regarding his or her own abilities and qualifications, or facts about the mediation process and its costs and benefits. 

F.         Professional Relationships 

          1.       Relationships with other Mediators. In situations where more than one mediator is participating, each should keep the other informed of developments essential to a cooperative effort.

          2.       Relationships with other Professionals. A mediator should respect the complementary relationship between mediation and legal, mental health, and other social and medical services and should promote cooperation with other professionals.

G.        Training and Continuing Education

          1.       Training. A mediator has a duty to acquire substantive knowledge and procedural skill in conducting the basic mediation process as well as areas of specialization.

          2.       Continuing Education. A mediator has a responsibility to participate in continuing education and ongoing professional growth. A mediator is encouraged to join with other mediators and members of related professions to promote professional development.

H.        Advancement of Mediation

          1.       Mediation Service. A mediator is encouraged to provide some mediation service in the community for a nominal or no fee and to act as a mentor for others who are entering the profession.

          2.       Promotion of Mediation. A mediator should promote the advancement of mediation by encouraging and participating in research, publishing or other forms of professional and/or public information and education.