Quality lawyers adhere to multiple layers of ethical and good conduct guidelines as part of their daily practice. Some in the legal field suggest mediators exist in the wild west, with no rules or boundaries governing their work. Nothing could be further from the truth. Mediators who are also lawyers are bound by the same ethical standards as their peers. Those who serve the legal community must conform to their own specific ethical norms to be effective, trusted, and meet regulatory requirements. A careful balancing of interests and adherence to ethical boundaries is mandatory. While there’s no over-arching regulatory body for mediators in Canada, there’s an abundance of guidance offered by the courts and governing professional bodies.
For example, the Ontario chapter of the Canadian Bar Association has produced a Model Code of Conduct based on the five critical pillars of ethical and fair mediation practice. For matters mediated under the Mandatory Mediation Program, this code is binding and failure to adhere to it could result in removal from the Roster. Even for mediators who don’t work in the roster environment, the code offers strong guidance, and mediators ignore it at their own peril.
The first pillar is the Principle of Self-Determination. This mandates that the process belongs to the parties and decisions leading to any possible resolution shall be voluntary and non-coerced. In this context, the parties must clearly understand the non-binding role of the mediator, and the mediator must avoid providing any appearance of legal advice to the parties. When necessary, mediators also have a duty to advise parties to consult other professionals to help them make informed choices.
The second pillar is Impartiality. Suffice it to say that neutrality can never be compromised during the process. Once this happens, mediators can no longer function properly. It’s critical for mediators to identify cases where they may lose impartiality so they can decline those assignments or withdraw from the retainer as early as possible to avoid any disruption or inconvenience for the parties. That said, mediators can form opinions on risks or merits and express these opinions at the correct time. But mediators must remain unbiased between the parties, their interests, and the settlement options everyone wishes to discuss and consider. For further discussion on this issue, read Neutrality of the Mediator, The Coin of the Realm article.
The third pillar is the disclosure of Conflict of Interest. In cases where mediators identify a conflict of interest or a potential conflict of interest, they have a duty to disclose the issue to all parties as soon as possible. After disclosure, the mediator should withdraw from the case unless a fully informed consent for the mediator to continue is obtained from all participating parties. Even then, withdrawal is usually the most prudent choice.
The fourth pillar is Confidentiality. Trust is the foundation for all effective mediations, and it cannot be maintained unless the parties understand their discussions will remain confidential. The mediator cannot share information or documents with anyone who is not part of the process. While there are certain limitations to this duty (consent, order of the court, potential threat to human life), the parties cannot effectively discuss their needs with the mediator if there is a risk that information may reach those outside of the process. Mediators also need to ensure the parties understand the parameters for any information sharing that is revealed in caucuses.
The fifth and final pillar is Quality of the Process. This element covers a number of areas linked to providing a fair and effective session. The mediator must ensure the parties can clearly understand the mediation process and also have a real opportunity to participate in it. This means that linguistic and other barriers to full and voluntary participation in the negotiations must be carefully analysed and overcome before the process goes ahead. In cases where a particular technical or legal background is needed to effectively mediate the matter, the mediator has a duty to ensure they can provide the requisite level of skill and knowledge that the matter deserves.
While there are many other professional guidelines mediators can adopt to enhance the quality of their practice, the CBAO Model Code provides an excellent structure to understand the ethical restrictions that protect the parties from being subjected to an unfair process. Parties who entrust mediators with dispute resolution have a right to expect a serious, disciplined process and they deserve a chance to be fully heard. The CBAO guidelines help ensure those expectations can be met and exceeded. While a just resolution is the goal of any mediation, keeping the process itself firmly within ethical guidelines is equally important.