CODE OF PROFESSIONAL CONDUCT
Article 1: Application and Enforcement Article 2: Types of Mediation and Their Meaning Article 3: Goal of Process and Role of Participants Article 4: Integrity Article 5: Competence Article 6: Inter-Professional Relations Article 7: Confidentiality Article 8: Impartiality Article 9: Ensuring Fair Negotiations Article 10: Information, Disclosure and Advice Article 11: Agreement to Mediate Article 12: Termination of Mediation Article 13: Public Statements and Promotional Activities Article 14: Charges for Services
Article 1: Application and Enforcement
1. Membership in Conflict Resolution Saskatchewan requires explicit agreement to abide by:
(a) This Code of Professional Conduct; and
(b) The disciplinary procedures and sanctions adopted from time to time by the Standards and Ethics Committee of Conflict Resolution Saskatchewan.
2. The following rules are intended to govern the relations of mediators with their clients, their professional colleagues, and the general public so that all will benefit from high standards of practice in mediation. Members of Conflict Resolution Saskatchewan shall observe the spirit as well as the letter of provisions in this Code.
3. It is the obligation of mediators to report and to encourage their clients to report, in writing, real or apparent breaches of this Code forthwith to the Chairperson of the Standards and Ethics Committee and/or to the President of Conflict Resolution Saskatchewan.
4. Members shall make this Code available to clients or the public upon request.
Article 2: Types of Mediation and Their Meaning
1. For the purposes of the Code, “mediation” is defined as a non-adversarial, co-operative decision-making process in which a qualified and impartial third party, “the mediator”, attempts to help participants resolve their disputes by agreement. The resolution is to be voluntary and based upon sufficient information and advice for each party.
2. The “closed mediation” process is intended to be confidential.
3. The “open mediation” process may result in the mediator preparing a report and/or making recommendations.
Article 3: Goal of Process and Role of Participants
1. The goal of mediation is a fair and workable agreement, not a settlement at any cost.
2. The primary responsibility for the resolution of a dispute rests with the parties. At no time shall a mediator coerce the participants into agreement or make a substantive decision for any participant.
3. The mediator’s role is that of facilitator, i.e. to assist the parties to reach an informed and voluntary agreement that is consistent with the needs of each respective party.
Article 4: Integrity
1. Mediators shall avoid any activity that could create a conflict of interest. They shall not become involved in relationships with clients which might impair their professional judgment or in any way increase the risk of exploiting clients, such as, but not limited to, mediating disputes involving close friends, relatives, colleagues, supervisors or students. It is a violation of this Code to engage in sexual intimacies with a participant in the mediation process.
Article 5: Competence
1. Mediators shall perform their services in a conscientious, diligent and efficient manner in accordance with this Code.
2. It is the obligation of a member acting as a mediator to ensure that he or she is qualified to deal with the specific issues involved. Mediators shall acquire substantive knowledge and procedural skills as defined by the Education Committee and adopted by the Board of Directors of Conflict Resolution Saskatchewan.
3. While mediators have a diversity of education and training, the obligation to refrain from rendering services outside the limits of a mediator’s qualifications and capabilities remains.
4. Mediators shall engage in continuing education to ensure that their mediation skills are current and effective.
Article 6: Inter-Professional Relations
1. A mediator shall respect the complementary relationships among mediation, legal, mental health and other services. He or she should promote co-operation with other professionals and encourage clients to use other professional resources when appropriate.
2. Where more than one mediator is participating in a particular case, each has the responsibility to keep the other(s) informed of developments in the mediation process essential to a co-operative effort.
Article 7: Confidentiality
1. A mediator shall not voluntarily disclose to anyone who is not a party to the mediation any information obtained through the mediation process, except:
(a) Non-identifying information for research or education purposes; or
(b) With the written consent of the parties to the mediation contract; or
(c) When ordered to do so by a judicial authority with jurisdiction to compel such disclosure, or required to do so by legislation or other law; or
(d) When the information discloses an actual or potential threat to human life or safety.
2. Any information so divulged shall be limited to what is absolutely necessary to accomplish such purposes.
3. While closed mediation imposes the intention and duty of confidentiality on a mediator, it cannot confer privilege, and the mediator shall advise the parties that the intended confidentiality cannot be guaranteed unless legislative privilege exists.
4. Clients shall be informed, at the outset, of these and other limitations to confidentiality.
5. A mediator shall maintain confidentiality of clients’ files and shall ensure that office staff do so as well in the storage and disposal of such records.
Article 8: Impartiality
1. A mediator has a duty to act with impartiality in relation to the participants. Impartiality means freedom from favoritism or bias either in word or in action.
2. The perception by one or both of the parties that the mediator is partial does not in itself require to the mediator to withdraw, but in such circumstances, the mediator shall remind both parties of their right to terminate the mediation.
3. A mediator shall disclose to the participants any biases he or she may have relating to the issues to be mediated and any circumstances which might constitute or cause a conflict of interest, real or perceived, to arise. Such disclosure shall be made as soon as the mediator recognizes the potential or any bias becoming operative or any conflict of interest arising.
4. A mediator shall refrain from mediating in cases where there has been any significant prior involvement between the mediator and one of the participants, unless every other participant expressly consents to the mediation proceeding after there has been full disclosure of such prior involvement. In this case, the role of the mediator should be carefully distinguished from the earlier relationship.
5. A lawyer-mediator, or any partner or associate of such lawyer-mediator, shall not represent either party during or after the mediation process in any related legal matters arising out of the issues discussed in the mediation.
Article 9: Ensuring Fair Negotiations
1. A mediator shall endeavor to ensure that the participants reach agreement freely, voluntarily, without undue influence, and on the basis of informed consent.
2. A mediator shall ensure that each party has had an opportunity to understand the implications and ramifications of available options. In the event that a party needs either additional information or assistance in order for the negotiations to proceed in a fair and orderly manner or for an agreement to be reached, the mediator shall refer the individual to appropriate resources.
3. A mediator shall explore whether the participants are capable of engaging in the mediation process. If a mediator believes that the parties are unable or unwilling to meaningfully participate in the process or that a reasonable agreement is unlikely, the mediator may suspend or terminate mediation and should encourage the parties to seek appropriate professional help.
4. The mediator has a duty to ensure balanced negotiations and shall not permit manipulative or intimidating negotiating techniques. While mediators must be impartial towards the participants, impartiality does not imply neutrality on the issue of fairness. If such negative tactics cannot be eliminated, the mediator has a duty to terminate a mediation. It is a fundamental principle of mediation that competent and informed parties can reach an agreement which may not correspond to legal guidelines contained in the relevant statutes or case law or that does not correspond with general community expectations and standards. Although the mediator’s role is that of a facilitator and the primary responsibility for the resolution of a dispute rests with the parties, if the mediator finds an agreement or any part of it to be inherently unfair, he or she is expected to indicate his or her non-concurrence to the parties.
Article 10: Information, Disclosure and Advice
1. It is the duty of a mediator to actively encourage the participants to make decisions based upon sufficient information, knowledge and advice.
2. Where financial or property issues are involved, the mediator shall obtain an understanding from the parties to make frank and full disclosure of their financial and related circumstances at the appropriate time in the mediation process. The mediator will assist the parties and their advisors to achieve such disclosure. A mediator has an ongoing obligation to advise both parties to obtain legal and other professional advice and assistance in this respect.
3. Every mediator has an ongoing obligation to advise participants of the desirability and availability of independent legal advice.
Article 11: Agreement to Mediate
1. The mediator shall explain the mediation process clearly to the parties before agreeing to mediate their dispute. In particular, the mediator should at the outset:
(a) Define and explain mediation, both closed and open, and distinguish it from reconciliation, counselling, therapy, assessment, advocacy, adjudication and arbitration;
(b) Discuss the appropriateness of mediation for the parties in light of their particular circumstances, the benefits and risks of mediation, and the other alternatives open to the parties;
(c) Discuss the differences between closed and open mediation and the implications of each, and if the mediator practices both types, require the parties to choose between closed and open mediation;
(d) Advise the parties that either of them or the mediator has the right to suspend or terminate the process at any time;
(e) Make explicit the costs of mediation and reach an agreement with the parties regarding payment of these costs;
(f) Advise the parties of the role of legal advice in accordance with Article 10 of this Code. If the mediator is also a lawyer, he or she shall inform the parties that he or she cannot represent either or both of them in any related legal action;
(g) Discuss with the parties the mediator’s specific procedures and practices, such as when:
(i) Separate sessions may be held;
(ii) There are to be separate communications with the parties or their counsel; and
(iii) Other persons are to be involved in the mediation; and
(h) Recommend that the agreement to mediate be written and signed by the parties and the mediator.
Article 12: Termination of Mediation
1. It is the duty of a mediator to suspend or terminate mediation wherever continuation of the process is likely to harm or prejudice one or more of the participants, such as when mediation is being misused to:
(a) Develop a status quo with respect to the custody of the children; or
(b) To dissipate or conceal assets.
2. A mediator shall suspend or terminate mediation when its usefulness is exhausted.
3. When a mediator believes that an agreement being reached is unreasonable, he or she shall so advise the parties and shall consider withdrawing from the mediation.
4. Mediators have a duty not to withdraw their services except for good cause and upon reasonable notice to the parties.
Article 13: Public Statements AND
1. The purpose of public statements concerning family mediation should be to:
(a) Educate the public generally about the process; and
(b) Present the process of mediation objectively as one of several methods of dispute resolution in order to help the public make informed judgments and choices.
2. Public communications shall not mislead the public, misrepresent facts, or contain any:
(a) False, fraudulent, misleading or unfair statements;
(b) Statements likely to mislead or deceive by making only a partial disclosure of relevant facts; or
(c) Statements intended or likely to create false or unjustified expectations of favorable results.
3. When advertising professional services, mediators should restrict themselves to matters which educate and inform the public. These could include the following information to describe the mediator and the services offered: name, address, telephone number, office hours, relevant academic degree(s), relevant training and experience in mediation, appropriate professional affiliations and membership status, advantages of the mediation process, and any additional relevant or important consumer information.
4. Public communications shall not falsely imply that membership in Conflict Resolution Saskatchewan or a provincial or territorial mediation association constitutes certification as a mediator.
5. Mediators should promote the advancement of mediation by encouraging and/or participating in research, publishing, and other forms of professional and public education.
6. Mediators are encouraged to provide some mediation services to the community for no or nominal charge.
7. Mediators should generally promote a co-operative approach to problem-solving and the welfare of participants as a whole.
Article 14: Charges for Services
1. At the outset, the mediator shall explain the fees to be charged to mediation and any related costs. He or she shall obtain agreement from the parties as to how the fees are to be shared and the method of payment.
2. No commissions, rebates or similar forms of remuneration shall be given or received for referral of clients for mediation services.
3. It is inappropriate for a mediator to base fees on the outcome of the mediation process.When a retainer has been collected before mediation services were rendered, any unearned fees should be returned promptly to the clients upon the termination of mediation.