This Code of Conduct establishes a set of principles that mediators can voluntarily commit to follow, at their own risk. It can be used by mediators conducting all types of mediation in civil and commercial matters.
Organisations that provide mediation services can also implement it by requiring their mediators to comply with the code of conduct. Organisations can provide information on the measures they are taking, for example through training, evaluation and monitoring, to promote mediators’ compliance with this Code.
For the purposes of the Code of Conduct, mediation shall mean any structured procedure, by whatever name or method referred to, in which two or more disputing parties attempt to reach an agreement on their own, on a voluntary basis, to resolve the dispute between them with the assistance of a third party, hereinafter referred to as a “mediator“.
Compliance with the Code of Conduct is without prejudice to national legislation or rules governing the liberal professions.
Organisations providing mediation services can optionally develop more detailed codes tailored to the specific setting or types of mediation services they offer, as well as to specific areas such as family law or consumer mediation.
1. Powers, appointment and fees of mediators and promotion of their services
- Powers
Mediators must be competent and sufficiently knowledgeable in the mediation procedure. They must have received appropriate training and continuously update their theoretical and practical skills in mediation, in accordance with current standards or accreditation schemes.
1.2. Appointment
Mediators must reach agreement with the parties on the appropriate dates on which mediation is likely to take place. Mediators must ensure that they have the appropriate training and skills to mediate a particular case before accepting an appointment. Upon request, they must provide the parties with information regarding their education and experience.
1.3. Taxi
In the event that this is not done, mediators should always provide the parties with full information on the method of remuneration they intend to apply. They should not accept mediation before all parties involved have agreed on how their remuneration should be determined.
1.4. Promotion of mediators’ services
Mediators may promote the services they provide provided they do so in a professional, credible and dignified manner.
2. Independence and impartiality
- Independence
If there are circumstances which may affect, or may be considered to affect, the mediator’s independence or to create a conflict of interest, the mediator must disclose those circumstances to the parties before commencing or continuing to mediate.
These circumstances are:
- any personal or business relationship with one or more of the parties;
- any direct or indirect financial or other interest in the outcome of the mediation process;
- where the mediator or a member of his firm acts in a capacity other than that of mediator for one or more of the parties.
In such cases, the mediator may agree to conduct or continue to conduct mediation only if he or she is satisfied that he or she is capable of conducting it in complete independence, with a view to ensuring complete impartiality and with the express agreement of the parties.
The obligation to disclose these circumstances exists throughout the mediation procedure.
2.2. Impartiality
Mediators must always act and strive to act impartially towards the parties and undertake to serve all parties equally in the mediation procedure.
3. Mediation agreement, procedure and dispute resolution
- Procedure
The mediator must ensure that the parties to the mediation understand the characteristics of the mediation procedure and the role of the mediator and the parties in it.
In particular, prior to the commencement of the mediation, the mediator must ensure that the parties have understood and expressly agreed to the terms and conditions of the mediation agreement, including any applicable provisions relating to confidentiality obligations that the mediator and the parties have.
At the request of the parties, the mediation agreement may be drawn up in writing.
The mediator must conduct the proceedings in a proper manner, taking into account the facts and circumstances of the particular case, including the possible power imbalance and any wishes that the parties may express, the rule of law and the need to resolve the dispute expeditiously. The parties may agree with the mediator on the manner in which the mediation will be conducted, by reference to a specific legal provision or otherwise.
If the mediator deems it necessary, he may hear the parties separately.
3.2. Fairness of the procedure
The mediator must ensure that all parties have the opportunity to participate effectively in the procedure.
The mediator must notify the parties and may terminate the mediation if:
- the agreement in the process of being concluded appears to him to be unenforceable or unlawful in the circumstances of the case or in the light of his competence to make such a finding, or
- the mediator considers that it is unlikely that the continuation of the mediation procedure will lead to a resolution of the dispute.
3.3. Completion of the procedure
The mediator must take all appropriate steps to ensure that the parties agree to the settlement in full knowledge of its implications and that they understand the terms of the agreement.
The parties may terminate the mediation at any time without having to give reasons for their decision.
The mediator must, at the request of the parties and within the limits of his powers, inform them of how they can shape the agreement and of the possibilities for its implementation.
4. Privacy
Except where there is an obligation by law or public policy to disclose the information, the mediator shall keep confidential any information arising out of or in connection with the mediation, including the fact that the mediation is to take place or has already taken place. Except where there is a statutory obligation, any confidential information disclosed to the mediator by a party must not be disclosed to the other party without permission.
