Mediation Ethics
Jerry Meyers, Senior Judge, CPM
Teri Crowther, M.S., CPM
www.bridge-mediation.com (2011)
Disclosures
• Idaho Code § 9-809 Disclosure of conflicts of
interest – Background
• Model Standards of Conduct – Idaho State Bar
standard IV. Competence
• Idaho Mediation Standards of Practice for
Idaho Mediators
What Ethics Really Mean
Merriam-Webster defines
ethics as “1. the discipline
dealing with what is good
and bad and with moral
duty and obligation . 2a : a
set of moral principles : a
theory or system of moral
values b: the principles of
conduct governing an
individual or a group
<professional ethics> c : a
guiding philosophy d : a
consciousness of moral
importance.”
An Ethical
Approach
is Not
Always a
Closed
Approach
Mediators have several ethical responsibilities, yet none preclude a
mediator from being creative and thinking outside of the box.
•Mediation is a, presumptively, collaborative process in which disputants come together in
the presence of a mediator in order to find a self-directed resolution.
•Mediation is not, however, arbitration, litigation, and unless there is a licensed therapist in
the room, it is not therapy. It is simply a facilitated discussion between parties where the
mediator helps each party adhere to agreed-to rules of communication as well as records
the agreement if one is produced.
•Mediation is meant to be a more peaceful, civilized means to conflict resolution than
litigation. We as mediators can only hope to set the example so children expected
mediation to be the way to handle conflict.
Self-Determination
Rules? There are Rules?
Let’s Test!
Nobody said anything about a test!
Rules and Ethics – What Defines Them?
Rules and Ethics – What are they?
A: All mediators rely on a foundation of ethical principles and
standards to guide decisions within their practices.
B: This foundation includes laws enacted by the legislature, rules
promulgated by administrative authorities, ethics adopted by
professional associations, and personal ethics.
C. Following these Rules insures fairness to all.
D. They also provide the basis for jury instructions when you are
accused of professional negligence.
E. They either protect you or sink you depending upon your
adherence in the mediation
Idaho Statutes
Title 9
Evidence
Chapter 8
Uniform
Mediation Act
TITLE 9 EVIDENCE
CHAPTER 8 UNIFORM MEDIATION ACT
9-801. Short title. This chapter may be cited as the "Uniform Mediation Act.“
9-802. Definitions. In this chapter: (1) "Mediation" means a process in which a mediator facilitates communication and
negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute.
(2) "Mediation communication" means a statement, whether oral or in a record or verbal or nonverbal, that occurs during a
mediation or is made for purposes of considering, conducting, participating in, initiating, continuing or reconvening a mediation or
retaining a mediator.
(3) "Mediation party" means a person that participates in a mediation and whose agreement is necessary to resolve the dispute.
(4) "Mediator" means an individual who conducts a mediation.
(5) "Nonparty participant" means a person, other than a party or mediator, that participates in a mediation.
(6) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association,
joint venture, government; governmental subdivision, agency, or instrumentality; public corporation; or any other legal or
commercial entity.
(7) "Proceeding" means:
(a) A judicial, administrative, arbitral or other adjudicative process, including related prehearing and posthearing motions,
conferences and discovery; or
(b) A legislative hearing or similar process.
(8) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is
retrievable in perceivable form.
(9) "Sign" means:
(a) To execute or adopt a tangible symbol with the present intent to authenticate a record;
(b) To attach or logically associate an electronic symbol, sound or process to or with a record with the present intent to
authenticate a record; or
(c) To assent on a stenographic record with the present intent to authenticate a record.
9-803. Scope. (1) Except as otherwise provided in subsection (2) or (3) of this section, this chapter applies to a mediation in which:
(a) The mediation parties are required to mediate by statute or court or administrative agency rule or referred to mediation by a
court, administrative agency or arbitrator; 02
(b) The mediation parties and the mediator agree to mediate in a record that demonstrates an expectation that mediation
communications will be privileged against disclosure; or
(c) The mediation parties use as a mediator an individual who holds himself or herself out as a mediator or the mediation is
provided by a person that holds itself out as providing mediation.
(2) This chapter does not apply to a mediation:
(a) Relating to the establishment, negotiation, administration or termination of a collective bargaining relationship;
(b) Relating to a dispute that is pending under or is part of the processes established by a collective bargaining agreement, except
that the chapter applies to a mediation arising out of a dispute that has been filed with an administrative agency or court;
(c) Conducted by a judge who might make a ruling on the case; or
(d) Conducted under the auspices of:
(i) A primary or secondary school if all the parties are students, or
(ii) A correctional institution for youth if all the parties are residents of that institution.
•Confidential unless agreed/notified others(3) If the parties agree in advance in a signed record, or a record of proceeding reflects
agreement by the parties, that all or part of a mediation is not privileged, the privileges under sections 9-804 through 9-806, Idaho
Code, do not apply to the mediation or part agreed upon. However, sections 9-804 through 9-806, Idaho Code, apply to a mediation
communication made by a person that has not received actual notice of the agreement before the communication is made.
9-804. Privilege against disclosure -- Admissibility -- Discovery. (1) Except as otherwise provided in section 9-806, Idaho Code, a
mediation communication is privileged as provided in subsection (2) of this section and is not subject to discovery or admissible in
evidence in a proceeding unless waived or precluded as provided by section 9-805, Idaho Code. (2) In a proceeding, the following
privileges apply:
(a) A mediation party may refuse to disclose, and may prevent any other person from disclosing, a mediation communication.
(b) A mediator may refuse to disclose a mediation communication, and may prevent any other person from disclosing a mediation
communication of the mediator.
(c) A nonparty participant may refuse to disclose, and may prevent any other person from disclosing, a mediation communication of
the nonparty participant.
(3) Evidence or information that is otherwise admissible or subject to discovery does not become inadmissible or protected from
discovery solely by reason of its disclosure or use in a mediation.
9-805. Waiver and preclusion of privilege. (1) A privilege under section 9-804, Idaho Code,
may be waived in a record or orally during a proceeding if it is expressly waived by all parties
to the mediation and: (a) In the case of the privilege of a mediator, it is expressly waived by
the mediator; and
(b) In the case of the privilege of a nonparty participant, it is expressly waived by the
nonparty participant.
(2) A person that discloses or makes a representation about a mediation communication
which prejudices another person in a proceeding is precluded from asserting a privilege
under section 9-804, Idaho Code, but only to the extent necessary for the person prejudiced
to respond to the representation or disclosure.
(3) A person that intentionally uses a mediation to plan, attempt to commit or commit a
crime or to conceal an ongoing crime or ongoing criminal activity is precluded from
asserting a privilege under section 9-804, Idaho Code.
9-806. Exceptions to privilege. (1) There is no privilege under section 9-804, Idaho Code, for
a mediation communication that is: (a) In an agreement evidenced by a record signed by
all parties to the agreement;
(b) Available to the public under sections 9-337 through 9-347, Idaho Code, or made
during a session of a mediation which is open, or is required by law to be open, to the
public;
(c) A threat or statement of a plan to inflict bodily injury or commit a crime of violence;
(d) Intentionally used to plan a crime, attempt to commit or commit a crime or to conceal
an ongoing crime or ongoing criminal activity;
(e) Sought or offered to prove or disprove a claim or complaint of professional misconduct
or malpractice filed against a mediator;
(f) Except as otherwise provided in subsection (3) of this section, sought or offered to
prove or disprove a claim or complaint of professional misconduct or malpractice filed
against a mediation party, nonparty participant or representative of a party based on
conduct occurring during a mediation; or
(g) Sought or offered to prove or disprove abuse, neglect, abandonment or exploitation in
a proceeding in which a child or adult protective services agency is a party, unless the
public agency participates in the mediation.
9-806. Exceptions to privilege (cont’d) 2) There is no privilege under section 9-804, Idaho
Code, if a court, administrative agency or arbitrator finds, after a hearing in camera, that
the party seeking discovery or the proponent of the evidence has shown that the evidence
is not otherwise available, that there is a need for the evidence that substantially
outweighs the interest in protecting confidentiality, and that the mediation communication
is sought or offered in:
(a) A court proceeding involving a felony or misdemeanor; or
(b) Except as otherwise provided in subsection (3) of this section, a proceeding to prove a
claim to rescind or reform or a defense to avoid liability on a contract arising out of the
mediation.
(3) A mediator may not be compelled to provide evidence of a mediation communication
referred to in subsection (1)(f) or (2)(b) of this section.
(4) If a mediation communication is not privileged under subsection (1) or (2) of this
section, only the portion of the communication necessary for the application of the
exception from nondisclosure may be admitted. Admission of evidence under subsection
(1) or (2) of this section does not render the evidence, or any other mediation
communication, discoverable or admissible for any other purpose.
9-807. Prohibited mediator reports. (1) Except as otherwise provided in subsection (2) of this
section, a mediator may not make a report, assessment, evaluation, recommendation, finding
or other communication regarding a mediation to a court, administrative agency or other
authority that may make a ruling on the dispute that is the subject of the mediation. (2) A
mediator may disclose:
(a) Whether the mediation occurred or has terminated, whether a settlement was reached,
and attendance;
(b) A mediation communication as permitted under section 9-806, Idaho Code;
(c) A mediation communication evidencing abuse, neglect, abandonment or exploitation of
an individual to a public agency responsible for protecting individuals against such
mistreatment; or
(d) In mediation governed by Idaho rule of civil procedure 16(j), information permitted under
Idaho rule of civil procedure 16(j).
(3) A communication made in violation of subsection (1) of this section may not be
considered by a court, administrative agency or arbitrator.
9-808. Confidentiality. Unless subject to sections 9-337 through 9-347 or 67-2340 through 672347, Idaho Code, mediation communications are confidential to the extent agreed by the
parties or provided by other law or rule of this state.
9-809. Mediator's disclosure of conflicts of interest -- Background. (1) Before accepting a
mediation, an individual who is requested to serve as a mediator shall: (a) Make an inquiry
that is reasonable under the circumstances to determine whether there are any known facts
that a reasonable individual would consider likely to affect or create the appearance of
affecting the impartiality of the mediator, including a financial or personal interest in the
outcome of the mediation and an existing or past relationship with a mediation party or
foreseeable participant in the mediation; and
(b) Disclose any such known fact to the mediation parties as soon as is practical before
accepting a mediation.
(2) If a mediator learns any fact described in subsection (1)(a) of this section after accepting a
mediation, the mediator shall disclose it as soon as is practicable.
(3) At the request of a mediation party, an individual who is requested to serve as a mediator
shall disclose the mediator's qualifications to mediate a dispute.
(4) A person that violates subsection (1) or (2) of this section is precluded by the violation
from asserting a privilege under section 9-804, Idaho Code.
(5) Subsections (1), (2) and (3) of this section do not apply to an individual acting as a judge.
(6) This chapter does not require that a mediator have a special qualification by background
or profession.
(7) A mediator must be impartial unless, after disclosure of the facts required in subsections
(1) and (2) of this section to be disclosed, the parties agree otherwise.
9-810. Participation in mediation. Unless otherwise
provided by court rule or order, an attorney or other
individual designated by a party may accompany the
party to and participate in a mediation. A waiver of
participation given before the mediation may be
rescinded.
Idaho
Court
Rules
IRCP 16(j)
Rule 16(j). Mediation of child custody and visitation disputes. (1) Definition of "Mediation".
Mediation under this rule is the process by which a neutral mediator appointed by the court
or agreed to by the parties assists the parties in reaching a mutually acceptable agreement
as to issues of child custody and visitation. The role of the mediator is to aid the parties in
identifying the issues, reducing misunderstandings, clarifying priorities, exploring areas of
compromise and finding points of agreement. An agreement reached by the parties is to be
based on the decisions of the parties, and not the decisions of the mediator. (2) Matters
Subject to Mediation. All domestic relations actions involving a controversy over custody or
visitation of minor children at the pre-trial, trial and post-decree stages in the courts of this
state shall be subject to mediation regarding issues of custody, visitation, or both. (3)
Selection of Mediator. The court shall permit the parties to select a mediator from the list of
registered mediators compiled by the Supreme Court and maintained by the Administrative
Director of the Courts. If the parties are unable to select a mediator, the court shall appoint
one. (4) Requirement to Attend Parent Education and Mediation Orientation. The district
court of any judicial district may provide by local rule that all parties to any domestic
relations case involving children, whether or not a trial or contested case has been
scheduled, be required to attend such parent education and mediation orientation, unless
excused by the court. (5) Authority of the Court. A court shall order mediation if, in the
court's discretion, it finds that mediation is in the best interest of the children and it is not
otherwise inappropriate under the facts of the particular case.
IRCP 16(j)
(6) Qualifications of Mediator - Application and Documentation. (A) The Supreme Court will
compile a list of registered mediators. Any applicant seeking to be placed on the Supreme
Court Roster of registered mediators shall submit to the Administrative Director of the Courts,
the following: (i) An Application for Registration, which includes an affidavit of compliance
executed by the applicant attesting that the applicant has fulfilled the requirements to be
placed on the Supreme Court list of registered mediators. (ii) A copy of the applicant's degree,
license or certificate. (iii) Proof of completion of the required mediation training as provided
in sections (6)(B) and (6)(C) of this rule. (B) Qualifications - Professional Credentials. To be
placed on the list of registered mediators compiled by the Supreme Court, the applicant must
have at least one of the following professional credentials: (i) The applicant is recognized by
Idaho Mediation Association as a Certified Professional Mediator (CPM), or membership in
the Association for Conflict Resolution at the advanced practitioner level or other national
organizations with equivalent standards for membership. (ii) The applicant is a member of
one of the following: the Idaho judiciary; licensed member of the Idaho State Bar Association;
licensed psychologist; licensed professional counselor; licensed clinical professional
counselor; licensed master social; licensed clinical or independent practice social worker;
licensed marriage and family therapist; certified school counselor; or certified school
psychologist. (iii) The applicant possesses a bachelors degree.
(C) Training. There are two independent training criteria for all applicants as set forth more fully
below. An applicant must complete the substantive training set forth in subsections (i) and (ii)
below. In addition, such training shall be approved and/or provided by an accredited college or
university, the Idaho Mediation Association, Association for Conflict Resolution, Association of
Family and Conciliation Courts, the Idaho State Bar, or the Idaho Supreme Court, Administrative
Office of the Courts. (i) Applicants under subsections 6(B)(i) and (iii) must have completed a
minimum of 60 hours mediation training within the past two years, 20 of which must be in the
field of child custody mediation. Applicants under subsection 6(B)(ii) must have completed a
minimum of 40 hours mediation training within the past two years, 20 of which must be in the
field of child custody mediation. The training hours required under this section may not include
any online training programs. (ii) At least 20 hours of the mediation training required for
applicants under section 6(B)(ii), and at least 40 hours of the training requirements for
applicants under sections 6(B)(i) and (iii), shall include the following topics, at least 30 percent
of which must be in the practice of mediation skills: (a) Information gathering (intake; obtaining
facts; screening issues); (b) Mediator relationship skills (neutrality; confidentiality;
nonjudgmental); (c) Communication skills (active listening; reframing issues: clarifying); (d)
Problem solving skills (identify problems, positions, needs, interests; brainstorm alternatives);
(e) Conflict management skills (theories of conflict management; mediation models; reducing
tensions; power imbalances); (f) Ethics (standards of practice; typical problems); (g) Professional
skills (substantive knowledge areas; case management; drafting agreements). (iii) The 20 hours
of child custody training required in section 6(C)(i) shall include the following topics: (a) Conflict
resolution theory; (b) Psychological issues in separation, divorce, and family dynamics; (c)
Domestic violence; (d) Issues and needs of children; (e) Child custody mediation processes and
techniques; (f) Family law, including custody and support. (g) Mediation ethics - a minimum of
two hours.
IRCP 16(j)
(D) Continuing Education of Mediators. Beginning the next July 1 after a mediator has been
placed on the Supreme Court list of registered mediators, the mediator must take at least
thirty (30) hours of child custody training in one or more of the areas as set forth in Section
(C)(iii) in each and every three (3) years period following the July 1 date. This training must
include a minimum of two hours of mediation ethics training. The mediator must file proof
of compliance with this requirement with the Administrative Office of the Courts by July 1 of
the year the continuing education is due. Along with proof of compliance, a mediator under
section 6(B)(ii) must also send proof of current licensing. Up to ten (10) of the thirty (30)
required hours may be satisfied through approved participatory online CEU programs. (E)
The administrative district judge in each judicial district may, by administrative order, require
mediators to comply with additional criteria beyond those stated in subsections (6)(B) and
(6)(C) of this rule. (F) Persons approved as child custody mediators prior to the effective date
of the amendment to this rule shall not be required to satisfy the training requirements of
parts (6)(B)(i), (6)(B)(ii) and (6)(B)(iii) of this rule, but shall be required to fulfill the
additional continuing education requirements of part (6)(D) of this rule.
IRCP 16(j)
(7) Duties of Mediator. (A) The mediator has a duty to define and describe for the
parties the process of mediation and its cost during the initial conference before the
mediation conference begins. The description should include the following: (i) The
difference between mediation and other forms of conflict resolution, including therapy
and counseling; (ii) The circumstances under which the mediator will meet alone with
either of the parties or with any other person; (iii) Any confidentiality of the mediation
proceedings and any privilege against disclosure; (iv) The duties and responsibilities of
the mediator and of the parties; (v) The fact that any agreement reached will be
reached by mutual consent of the parties; (vi) The mediator shall advise the participants
to seek independent legal counsel prior to resolving the issues and in conjunction with
formalizing an agreement; (vii) The information necessary for defining the disputed
issues. (B) The mediator has a duty to be impartial, and to advise all parties of any
circumstances bearing on possible bias, prejudice or impartiality. (i) The parties shall
have the right to have counsel review any resulting agreement before its submission to
the court. (ii) Any agreement submitted to the court shall be subject to court review and
approval. The court shall reject such agreement only if it is not in the best interests of
the child or children involved.
IRCP 16(j)
(8) Communications Between Mediator and the Court. (A) The mediator and the court shall
maintain no contact or communication except that the mediator may, without comment or
observation, report to the court: (i) That the parties are at an impasse; (ii) That the parties
have reached an agreement. In such case, however, the agreement so reached shall be
reduced to writing, signed by the parties and submitted to the court by one or both of the
parties, if pro se; otherwise, through their attorneys, for the court's approval. (iii) That one or
both of the parties have failed to attend the mediation proceeding; (iv) That meaningful
mediation is ongoing; (v) That the mediator withdraws from mediation; (vi) The allegation or
suspicion of domestic violence. (9) Contact Between Mediator, Attorneys and Other Interested
Persons. The mediator and the attorneys for the parties may communicate with one another in
the following manner: (A) Any contacts between the attorneys and the mediator shall be
either in writing or by conference call; (B) Attorneys are excluded from mediation conferences
unless their presence is requested by the mediator or ordered by the court. Other interested
persons may participate in the mediation upon consent of both parties. (10) Termination of
Mediation - Status Report. The court or the mediator may terminate mediation proceedings if
further progress toward a reasonable agreement is unlikely. The mediator shall notify the
court when the mediation has been concluded. Notice of the status of the mediation process
shall be submitted to the court within 28 days from the date of the initial order requiring
mediation.
IRCP 16(k)
Rule 16(k). Mediation of civil lawsuits. -- (1) Definition of Mediation. Mediation under I.R.C.P.
16(k) is the process by which a neutral mediator appointed by the Court or agreed to by the
parties assists the parties in reaching a mutually acceptable agreement. The role of the mediator
is to aid the parties in identifying the issues, reducing misunderstandings, clarifying priorities,
exploring areas of compromise and finding points of agreement. An agreement reached by the
parties is to be based on the decisions of the parties, and not the decisions of the mediator, (2)
Matters Subject to Mediation. All civil cases other than child custody and visitation disputes are
eligible for referral to mediation under this subsection. Child custody and visitation disputes
shall be mediated pursuant to I.R.C.P. 16(j). (3) Authority of the Courts. The referral of a civil
action to mediation does not divest the court of the authority to exercise management and
control of the case during the pending mediation. (4) Referral to Mediation. In its discretion a
court may order a case to mediation, as follows: (A) Upon motion by a party; (B) At any I.R.C.P.
16 conference; (C) Upon consideration of request for trial setting, pursuant to I.R.C.P. 40(b), if all
parties indicate in their request or response that mediation would be beneficial; or (D) At any
other time upon seven (7) days notice to the parties if the court determines mediation is
appropriate. (5) Selection of the Mediator. The parties shall have twenty-eight (28) days from
entry of the mediation order, or such other time as the court may allow, to select any person to
act as mediator and report their selection to the court. If the parties do not select a mediator
within twenty-eight (28) days, then the court shall appoint a mediator from the judicial district's
list of mediators maintained pursuant to I.R.C.P. 16(k)(13)(A). (6) Scheduling of the Mediation
Session(s). Unless the court otherwise orders, the initial mediation session shall take place
within forty-two (42) days of the reporting of the selection or the appointment of the mediator.
IRCP 16(k)
(7) Reports. Within seven (7) days following the last mediation session, the mediator or the
parties shall advise the court, with a copy to the parties, whether the case has, in whole or in
part, settled. (8) Compensation of Mediators. Mediators shall be compensated at their regular
fees and expenses, which shall be clearly set forth in the information and materials provided to
the parties. Unless other arrangements are made among the parties or ordered by the court,
the interested parties shall be responsible for a prorata share of the mediator's fees and
expenses. If a mediator is not paid, the court, upon motion of the mediator may order
payment. (9) Impartiality. The mediator has a duty to be impartial, and has a continuing duty
to advise all parties of any circumstances bearing on possible bias, prejudice or partiality. (10)
Attendance at the Mediation Session(s). The attorney(s) who will be primarily responsible for
handling the actual trial of the matter, and all parties, or insurers, if applicable, with authority
to settle, shall attend the session(s), unless otherwise excused by the mediator upon a
showing of good cause. (11) Confidentiality. The mediator shall abide by the confidentiality
rules agreed to by the parties. Confidentiality protections of I.R.E. 408 and 507 shall extend to
mediations under this Rule. (12) Sanctions. The mediator shall be subject to sanctions,
including removal from the roster of mediators, if the mediator fails to assume the
responsibilities provided herein.
IRCP 16(k)
(13) Qualifications of Mediators. Each trial court administrator shall maintain a list of
mediators who meet the qualifications of subsection A, and rosters from dispute
resolution organizations that meet the criteria set forth in subsection B below. (A)
Mediation Registration -- Qualifications of Court- Appointed Mediators (i) The
Administrative Director of the Courts shall compile and distribute at least annually a list
of mediators. For that purpose, the Administrative Director of the Courts shall gather
from all applicants an application demonstrating that the applicant: (a) is a member of
the Idaho State Bar; (b) has been admitted to practice law for not less than five (5) years;
and (c) has attended a minimum of forty (40) hours of mediation training that complies
with the standards set forth
in I.R.C.P. 16(j)(6)(B)(iv). (ii) In order for a person to remain
v
on the list of mediators maintained by the Administrative Director of the Court, the
mediator must submit proof that the mediator has completed a minimum of twenty (20)
hours of additional training or education during the preceding two (2) calendar years.
The training required by this rule shall be acquired by completing a program approved by
an accredited college or university or by one of the following organizations: Idaho State
Bar Association, Idaho Mediation Association, or Society of Professionals in Dispute
Resolutions.
IRCP 16(k)
(B) Mediation Registration -- Sponsors of Additional Rosters of Mediators (i) A public or
private dispute resolution organization may make its roster of mediators available to the
Administrative Director of the Courts for distribution to the trial court administrators if it
documents that it has: (a) an established selection and evaluation process for neutrals; (b)
a mechanism for addressing complaints brought against neutrals; and (c) a published code
of ethics that the neutrals must follow. A compilation of the organization's selection,
evaluation, published code of ethics, and complaint processes that can be distributed to
the parties shall be provided. (C) A list and roster(s) of mediators distributed by the
Administrative Director of the Courts, pursuant to subsections A and B, above, must
contain the following information about each mediator:
(a) name, address, telephone and FAX number(s);
(b) professional affiliation(s); (
(c) education;
(d) legal and/or mediation training and experience; and (e) fees and expenses.
(Adopted June 12, 1996, effective July 1, 1996; amended March 31, 2006, effective July 1,
2006.)
ICR 18.1
Rule 18.1. Mediation in criminal cases. In any criminal proceeding, any party or the court may
initiate a request for the parties to participate in mediation to resolve some or all of the issues
presented in the case. Participation in mediation is voluntary and will take place only upon
agreement of all parties. Decision making authority remains with the parties and not the
mediator. (1) Definition of “Mediation”. Mediation under this rule is the process by which a
neutral mediator assists the parties (defined as the prosecuting attorney on behalf of the State
and the Defendant) in reaching a mutually acceptable agreement as to issues in the case, which
may include sentencing options, restitution awards, admissibility of evidence and any other
issues which will facilitate the resolution of the case. Unless otherwise ordered, mediation shall
not stay any other proceeding. (2) Matters Subject to Mediation. All misdemeanor and felony
cases shall be subject to mediation if the court deems that it may be beneficial in resolving the
case entirely. Issues related, but not limited to, the possibility of reduced charges, agreements
about sentencing recommendations or possible Rule 11 agreements, the handling of restitution
and continuing relationship with any victim, are all matters which may be referred to mediation.
(3) Selection of Mediator. The court shall select a mediator from those maintained on a roster
provided by the Administrative Office of the Courts, after considering the recommendations of
the parties. That roster will include senior or sitting judges or justices who have indicated a
willingness to conduct criminal mediations and who have completed a minimum of twelve (12)
hours of criminal mediation training within the previous two years before being placed on the
roster. If the selected mediator is a senior judge or justice, the mediator will be compensated as
with any senior judge service, and approval from the trial court administrator must be obtained
by the court prior to the mediation.
ICR 18.1
(4) Role of the Mediator. The role of the mediator shall be limited to facilitating a voluntary
settlement between parties in criminal cases. The role of the mediator is to aid the parties in
identifying the issues, reducing misunderstandings, exploring options and discussing areas of
agreement which can expedite the trial or resolution of the case. The mediator shall not
preside over any aspect of the case, other than facilitation of a voluntary settlement according
to this rule. The mediator shall not take a guilty plea from nor sentence any defendant in the
case. (5) Persons to be Present at Mediation. Participants shall be determined by the attorneys
and the mediator. (6) Confidentiality. This section should be read in conjunction with the
provisions of I.R.E. 507. Mediation proceedings shall in all respects be privileged and not
reported or recorded. No statement made by any participant at the mediation shall be
admissible at trial of any defendant in the case or be considered for any purpose in the
sentencing of any defendant in the case. No statement made by a defendant in the course of
mediation shall be reported to the prosecuting attorney without the consent of the defendant.
Any written statements submitted to the mediator by either party as a part of the mediation
process shall remain confidential and shall not be disclosed by the mediator to anyone. Any
confidential statements or notes taken by the mediator shall all be destroyed at the conclusion
of the mediation. The mediator shall not discuss any matter that comes up within the
mediation with anyone other than the parties and defense counsel and shall advise the
assigned court only as to whether the mediation was successful and, if so, the agreed upon
terms.
ICR 18.1
(7) Mediator Privilege. Consistent with I.R.E. 507, a mediator may not be compelled to provide
evidence of a mediation communication under this rule. However, in Uniform Post-Convictions
cases where a defendant is raising allegations about the conduct of the prosecutor or defense
counsel involved in the mediation, the mediator may agree to waive the privilege. (8)
Agreements Reached. Any agreement reached by the parties is subject to approval by the
court and is not final until the court agrees to the terms. (9) Communications Between
Mediator and the Court. The mediator may consult with the presiding judge about the terms
of a possible plea agreement; otherwise, the mediator and the court shall have no contact or
communication except that the mediator may, without comment or observation, report to the
court: (a) that the parties are at an impasse; (b) that the parties have reached an agreement.
In such case, however, the agreement so reached shall be reduced to writing, signed by the
prosecuting attorney, the Defendant and defense counsel, and submitted to the court for
approval; (c) that meaningful mediation is ongoing; (d) that the mediator withdraws from the
mediation. (10) Communications Between Mediator and Attorneys. The mediator may
communicate in advance of the mediation with the attorneys to become better acquainted
with the current state of negotiations and the issues to be resolved in the mediation. This
communication may be conducted separately with each of the attorneys and without the
presence of the defendant. (11) Termination of Mediation. The court, the mediator, or any
party may terminate the mediation at any time if further progress toward a reasonable
agreement is unlikely or concerns or issues arise that make mediation no longer appropriate.
(Adopted March 18, 2011, effective July 1, 2011.)
IRE 408
Rule 408. Compromise and offers to compromise. Evidence of (1) furnishing, offering, or
promising to furnish, or (2) accepting, offering, or promising to accept, a valuable
consideration in compromising or attempting to compromise a claim which was disputed
as to either validity or amount, is not admissible to prove liability for, invalidity of, or
amount of the claim or any other claim. Evidence of conduct or statements made in
compromise negotiations is likewise not admissible. This rule does not require the
exclusion of any evidence otherwise discoverable merely because it is presented in the
course of compromise negotiations. This rule does not require exclusion if the evidence is
offered for another purpose, such as proving bias or prejudice of a witness, negativing a
contention of undue delay, or proving an effort to obstruct a criminal investigation or
prosecution. Compromise negotiations encompass mediation.
(Adopted January 8, 1985, effective July 1, 1985; amended March 23, 1990, effective July
1, 1990.)
Idaho State Bar Model Standards of Conduct
The spirit of the standards are the same as the American Bar
Association”
• Self determination
• Impartiality
• Conflict of interest/disclosure
• Competence
• Confidentiality
• Quality of process
• Advertising and solicitation
• Fees and other charges
These standards will likely be the basis of the jury instructions
if you are sued for professional negligence
The Model Standards of Conduct for Mediators
2005
The Model Standards of Conduct for Mediators were adopted by the Idaho State Bar as aspirational
guidelines for mediators in all fields in the State of Idaho. It is understood that by making these standards
aspirational violation of the standards in and of itself are not grounds for disciplinary action by the Idaho State
Bar. However, if an act that is an alleged violation of these standards is also a violation of one of the Idaho
Rules of Professional Conduct or of the Judicial Code, that act may be the basis for discipline under those
latter standards.
The Model Standards of Conduct for Mediators was prepared in 1994 by the American Arbitration Association, the American Bar Association’s
Section of Dispute Resolution, and the Association for Conflict Resolution1. A joint committee consisting of representatives from the same successor
organizations revised the Model Standards in 2005.2 Both the original 1994 version and the 2005 revision have been approved by each participating
organization.3
Preamble
Mediation is used to resolve a broad range of conflicts within a variety of settings. These Standards are designed to serve as fundamental ethical
guidelines for persons mediating in all practice contexts. They serve three primary goals: to guide the conduct of mediators; to inform the mediating parties;
and to promote public confidence in mediation as a process for resolving disputes.
Mediation is a process in which an impartial third party facilitates communication and negotiation and promotes voluntary decision-making by the
parties to the dispute.
Mediation serves various purposes, including providing the opportunity for parties to define and clarify issues, understand different perspectives,
identify interests, explore and assess possible solutions, and reach mutually satisfactory agreements, when desired.
Note on Construction
These Standards are to be read and construed in their entirety. There is no priority significance attached to the sequence in which the Standards
appear.
The use of the term “shall” in a Standard indicates that the mediator must follow the practice described. The use of the term “should” indicates that
the practice described in the standard is highly desirable, but not required, and is to be departed from only for very strong reasons and requires careful use
of judgment and discretion.
The use of the term “mediator” is understood to be inclusive so that it applies to co-mediator models.
These Standards do not include specific temporal parameters when referencing a mediation, and therefore, do not define the exact beginning or
ending of a mediation.
Various aspects of a mediation, including some matters covered by these Standards, may also be affected by applicable law, court rules, regulations,
other applicable professional rules, mediation rules to which the parties have agreed and other agreements of the parties. These sources may create conflicts
with, and may take precedence over, these Standards. However, a mediator should make every effort to comply with the spirit and intent of these Standards
in resolving such conflicts. This effort should include honoring all remaining Standards not in conflict with these other sources.
These Standards, unless and until adopted by a court or other regulatory authority do not have the force of law. Nonetheless, the fact that these
Standards have been adopted by the respective sponsoring entities should alert mediators to the fact that the Standards might be viewed as establishing a
standard of care for mediators.
Again- These could be jury instructions in the event you get sued.
STANDARD I. SELF-DETERMINATION
A. A mediator shall conduct a mediation based on the principle of party self-determination. Self-determination is the act of coming to a voluntary, uncoerced decision
in which each party makes free and informed choices as to process and outcome. Parties may exercise self-determination at any stage of a mediation, including
mediator selection, process design,
participation in or withdrawal from the process, and outcomes.
1. Although party self-determination for process design is a fundamental principle of mediation practice, a mediator may need to balance such party selfdetermination with a mediator’s duty to conduct a quality process in accordance with these Standards.
2. A mediator cannot personally ensure that each party has made free and informed choices to reach particular decisions, but, where appropriate, a mediator should
make the parties aware of the importance of consulting other professionals to help them make informed choices.
B. A mediator shall not undermine party self-determination by any party for reasons such as higher settlement rates, egos, increased fees, or outside pressures from
court personnel, program administrators, provider organizations, the media or others.
STA NDARD II. IMPARTIALITY
A. A mediator shall decline a mediation if the mediator cannot conduct it in an impartial manner. Impartiality means freedom from favoritism, bias or prejudice.
B. A mediator shall conduct a mediation in an impartial manner and avoid conduct that gives the appearance of partiality.
1. A mediator should not act with partiality or prejudice based on any participant’s personal characteristics, background, values and beliefs, or performance at a
mediation, or any other reason.
2. A mediator should neither give nor accept a gift, favor, loan or other item of value that raises a question as to the mediator’s actual or perceived impartiality.
3. A mediator may accept or give de minimis gifts or incidental items or services that are provided to facilitate a mediation or respect cultural norms so long as such
practices do not raise questions as to a mediator’s actual or perceived impartiality.
C. If at any time a mediator is unable to conduct a mediation in an impartial manner, the mediator shall withdraw.
STA NDARD III. CONFLICTS OF INTEREST
A. A mediator shall avoid a conflict of interest or the appearance of a conflict of interest during and after a mediation. A conflict of interest can arise from
involvement by a mediator with the subject matter of the dispute or from any relationship between a mediator and any mediation participant, whether past or
present, personal or professional, that reasonably raises a question of a mediator’s impartiality.
B. A mediator shall make a reasonable inquiry to determine whether there are any facts that a reasonable individual would consider likely to create a potential or
actual conflict of interest for a mediator. A mediator’s actions necessary to accomplish a reasonable inquiry into potential conflicts of interest may vary based on
practice context.
C. A mediator shall disclose, as soon as practicable, all actual and potential conflicts of interest that are reasonably known to the mediator and could reasonably be
seen as raising a question about the mediator’s impartiality. After disclosure, if all parties agree, the mediator may proceed with the mediation.
D. If a mediator learns any fact after accepting a mediation that raises a question with respect to that mediator’s service creating a potential or actual conflict of
interest, the mediator shall disclose it as quickly as practicable. After disclosure, if all parties agree, the mediator may proceed with the mediation.
E. If a mediator’s conflict of interest might reasonably be viewed as undermining the integrity of the mediation, a mediator
shall withdraw from or decline to proceed with the mediation regardless of the expressed desire or agreement of the parties to the contrary.
F. Subsequent to a mediation, a mediator shall not establish another relationship with any of the participants in any matter that would raise questions about the
integrity of the mediation. When a mediator develops personal or professional relationships with parties, other individuals or organizations following a mediation in
which they were involved, the mediator should consider factors such as time elapsed following the mediation, the nature of the relationships established, and
services offered when determining whether the relationships might create a perceived or actual conflict of interest.
STA NDARD IV. COMPETENCE
A. A mediator shall mediate only when the mediator has the necessary competence to satisfy the reasonable expectations of the
parties.
1. Any person may be selected as a mediator, provided that the parties are satisfied with the mediator’s competence and
qualifications. Training, experience in mediation, skills, cultural understandings and other qualities are often necessary for
mediator competence. A person who offers to serve as a mediator creates the expectation that the person is competent to
mediate effectively.
2. A mediator should attend educational programs and related activities to maintain and enhance the mediator’s knowledge
and skills related to mediation.
3. A mediator should have available for the parties’ information relevant to the mediator’s training, education, experience and
approach to conducting a mediation.
B. If a mediator, during the course of a mediation determines that the mediator cannot conduct the mediation competently,
the mediator shall discuss that determination with the parties as soon as is practicable and take appropriate steps to address the
situation, including, but not limited to, withdrawing or requesting appropriate assistance.
C. If a mediator’s ability to conduct a mediation is impaired by drugs, alcohol, medication or otherwise, the mediator shall not
conduct the mediation.
STA NDARD V. CONFIDENTIALITY
A. A mediator shall maintain the confidentiality of all information obtained by the mediator in mediation, unless otherwise agreed to
by the parties or required by applicable law.
1. If the parties to a mediation agree that the mediator may disclose information obtained during the mediation, the mediator
may do so.
2. A mediator should not communicate to any nonparticipant information about how the parties acted in the mediation. A
mediator may report, if required, whether parties appeared at a scheduled mediation and whether or not the parties reached
a resolution.
3. If a mediator participates in teaching, research or evaluation of mediation, the mediator should protect the anonymity of
the parties and abide by their reasonable expectations regarding confidentiality.
B. A mediator who meets with any persons in private session during a mediation shall not convey directly or indirectly to any other
person, any information that was obtained during that private session without the consent of the disclosing person.
C. A mediator shall promote understanding among the parties of the extent to which the parties will maintain confidentiality of
information they obtain in a mediation.
D. Depending on the circumstance of a mediation, the parties may have varying expectations regarding confidentiality that a
mediator should address. The parties may make their own rules with respect to confidentiality, or the accepted practice of an
individual mediator or institution may dictate a particular set of expectations.
STA NDARD VI. QUALITY OF THE PROCESS
A. A mediator shall conduct a mediation in accordance with these Standards and in a manner that promotes diligence, timeliness,
safety, presence of the appropriate participants, party participation, procedural fairness, party competency and mutual respect
among all participants.
1. A mediator should agree to mediate only when the mediator is prepared to commit the attention essential to an effective
mediation.
2. A mediator should only accept cases when the mediator can satisfy the reasonable expectation of the parties concerning
the timing of a mediation.
3. The presence or absence of persons at a mediation depends on the agreement of the parties and the mediator. The parties
and mediator may agree that others may be excluded from particular sessions or from all sessions.
4. A mediator should promote honesty and candor between and among all participants, and a mediator shall not knowingly
misrepresent any material fact or circumstance in the course of a mediation.
5. The role of a mediator differs substantially from other professional roles. Mixing the role of a mediator and the role of
another profession is problematic and thus, a mediator should distinguish between the roles. A mediator may provide
information that the mediator is qualified by training or experience to provide, only if the mediator can do so consistent with
these Standards.
6. A mediator shall not conduct a dispute resolution procedure other than mediation but label it mediation in an effort to gain
the protection of rules, statutes, or other governing authorities pertaining to mediation.
7. A mediator may recommend, when appropriate, that parties consider resolving their dispute through arbitration,
counseling, neutral evaluation or other processes.
8. A mediator shall not undertake an additional dispute resolution role in the same matter without the consent of the parties.
Before providing such service, a mediator shall inform the parties of the implications of the change in process and obtain their
consent to the change. A mediator who undertakes such role assumes different duties and responsibilities that may be
governed by other standards.
9. If a mediation is being used to further criminal conduct, a mediator should take appropriate steps including, if necessary,
postponing, withdrawing from or terminating the mediation.
10. If a party appears to have difficulty comprehending the process, issues, or settlement options, or difficulty participating in
a mediation, the mediator should explore the circumstances and potential accommodations, modifications or adjustments
that would make possible the party’s capacity to comprehend, participate and exercise self-determination.
B. If a mediator is made aware of domestic abuse or violence among the parties, the mediator shall take appropriate steps
including, if necessary, postponing, withdrawing from or terminating the mediation.
C. If a mediator believes that participant conduct, including that of the mediator, jeopardizes conducting a mediation consistent with
these Standards, a mediator shall take appropriate steps including, if necessary, postponing, withdrawing from or terminating the
mediation.
STA NDARD VII. ADVERTISI NG AND SOLICITATIO N
A. A mediator shall be truthful and not misleading when advertising, soliciting or otherwise communicating the mediator’s
qualifications, experience, services and fees.
1. A mediator should not include any promises as to outcome in communications, including business cards, stationery, or computerbased communications.
2. A mediator should only claim to meet the mediator qualifications of a governmental entity or private organization if that entity or
organization has a recognized procedure for qualifying mediators and it grants such status to the mediator.
B. A mediator shall not solicit in a manner that gives an appearance of partiality for or against a party or otherwise undermines the integrity of
the process.
C. A mediator shall not communicate to others, in promotional materials or through other forms of communication, the names of persons
served without their permission.
STA NDARD VIII. FEES AND OTHER CHARGES
A. A mediator shall provide each party or each party’s representative true and complete information about mediation fees, expenses and any
other actual or potential charges that may be incurred in connection with a mediation.
1. If a mediator charges fees, the mediator should develop them in light of all relevant factors, including the type and complexity of the
matter, the qualifications of the mediator, the time required and the rates customary for such mediation services.
2. A mediator’s fee arrangement should be in writing unless the parties request otherwise.
B. A mediator shall not charge fees in a manner that impairs a mediator’s impartiality.
1. A mediator should not enter into a fee agreement which is contingent upon the result of the mediation or amount of the settlement.
2. While a mediator may accept unequal fee payments from the parties, a mediator should not allow such a fee arrangement to adversely
impact the mediator’s ability to conduct a mediation in an impartial manner.
STA NDARD IX. ADVANCEMENT OF MEDIATION PRACTICE
A. A mediator should act in a manner that advances the practice of mediation. A mediator promotes this Standard by engaging in some or all of
the following:
1. Fostering diversity within the field of mediation.
2. Striving to make mediation accessible to those who elect to use it, including providing services at a reduced rate or on a pro bono basis
as appropriate.
3. Participating in research when given the opportunity, including obtaining participant feedback when appropriate.
4. Participating in outreach and education efforts to assist the public in developing an improved understanding of, and appreciation for,
mediation.
5. Assisting newer mediators through training, mentoring and networking.
B. A mediator should demonstrate respect for differing points of view within the field, seek to learn from other mediators and work together
with other mediators to improve the profession and better serve people in conflict .
Idaho Rules
of
Professional
Conduct
Idaho attorneys actions acting as a third-party
neutral are governed by Idaho Rules of Professional
Conduct 2.2
RULE 2.2: LAWYER SERVING AS THIRD-PARTY NEUTRAL
(a) A lawyer serves as a third-party neutral when the lawyer assists two or more persons who are not clients of the lawyer to reach a
resolution of a dispute or other matter that has arisen between them. Service as a third-party neutral may include service as an
arbitrator, a mediator or in such other capacity as will enable the lawyer to assist the parties to resolve the matter.
(b) A lawyer serving as a third-party neutral shall inform unrepresented parties that the lawyer is not representing them. When the
lawyer knows or reasonably should know that a party does not understand the lawyer's role in the matter, the lawyer shall explain the
difference between the lawyer's role as a third-party neutral and a lawyer's role as one who represents a client.
Commentary
[1] Alternative dispute resolution has become a substantial part of the civil justice system. Aside from representing clients in dispute-resolution
processes, lawyers often serve as third-party neutrals. A third-party neutral is a person, such as a mediator, arbitrator, conciliator or evaluator,
who assists the parties, represented or unrepresented, in the resolution of a dispute or in the arrangement of a transaction. Whether a third-party
neutral serves primarily as a facilitator, evaluator or decision maker depends on the particular process that is either selected by the parties or
mandated by a court.
[2] The role of a third-party neutral is not unique to lawyers, although, in some court-connected contexts, only lawyers are allowed to serve in this
role or to handle certain types of cases. In performing this role, the lawyer may be subject to court rules or other law that apply either to thirdparty neutrals generally or to lawyers serving as third-party neutrals. Lawyer-neutrals may also be subject to various codes of ethics, such as the
Code of Ethics for Arbitration in Commercial Disputes prepared by a joint committee of the American Bar Association and the American
Arbitration Association or the Model Standards of Conduct for Mediators jointly prepared by the American Bar Association, the American
Arbitration Association and the Society of Professionals in Dispute Resolution.
[3] Unlike nonlawyers who serve as third-party neutrals, lawyers serving in this role may experience unique problems as a result of differences
between the role of a third-party neutral and a lawyer's service as a client representative. The potential for confusion is significant when the
parties are unrepresented in the process. Thus, paragraph (b) requires a lawyer-neutral to inform unrepresented parties that the lawyer is not
representing them. For some parties, particularly parties who frequently use dispute-resolution processes, this information will be sufficient. For
others, particularly those who are using the process for the first time, more information will be required. Where appropriate, the lawyer should
inform unrepresented parties of the important differences between the lawyer's role as third party neutral and a lawyer's role as a client
representative, including the inapplicability of the attorney-client evidentiary privilege. The extent of disclosure required under this paragraph will
depend on the particular parties involved and the subject matter of the proceeding, as well as the particular features of the dispute-resolution
process selected.
[4] A lawyer who serves as a third-party neutral subsequently may be asked to serve as a lawyer representing a client in the same matter. The
conflicts of interest that arise for both the individual lawyer and the lawyer's law firm are addressed in Rule 1.12.
[5] Lawyers who represent clients in alternative dispute-resolution processes are governed by the Rules of Professional Conduct. When the
dispute-resolution process takes place before a tribunal, as in binding arbitration (see Rule 1.0(m)), the lawyer's duty of candor is governed by
Rule 3.3. Otherwise, the lawyer's duty of candor toward both the third-party neutral and other parties is governed by Rule 4.1.
Idaho
Mediation
Association
Code of
Ethics
IDAHO MEDIATION ASSOCIATION
STANDARDS OF PRACTICE FOR IDAHO MEDIATORS
Preamble
Mediation is a process by which a neutral third party facilitates the resolution of conflict
between two or more parties. Mediators must be qualified and impartial. Decision making
authority rests at all times with the parties. The parties should have clear and sufficient
information so that they can make informed decisions.
A mediator facilitates the clarification of interests and exploration of alternatives. The mediator
does not make decisions for the parties. A mediator's role is to raise questions for consideration
by the parties including questions of fairness and feasibility of settlement options.
A mediator's function is distinct from the role of legal advisor, representative or therapist. The
mediation process is distinct from processes involving arbitration, litigation, evaluation or
recommendation.
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 holding certificates issued by the Association. Mediators
who are not Idaho Mediation Association certified are encouraged to abide by these standards
when acting in a meditative capacity.
I. Facilitating the Process
1. Educating Parties About Mediation
A mediator has a duty to educate parties about the mediation process so that parties understand the differences
between mediation, arbitration, and other forms of conflict resolution, as well as therapy, counseling, or legal
representation.
2. Appropriateness of Mediation
A mediator has a duty to assess the parties' willingness and ability to mediate. A mediator will help the participants
evaluate the benefits, risks and costs of mediation and the alternatives available to them. If mediation is
inappropriate, the mediator must decline to mediate and suggest parties seek another conflict resolution process. This
is a continuing and on-going duty of the mediator.
3. Responsibility to Absentee Parties
A mediator will make reasonable 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 has a duty 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, the mediator must disclose to parties any biases or strong views relating
to the issues to be mediated. 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 shall disclose experience, training and any allegiance to participating parties.
6. Disclosure by the Parties
A mediator will insist upon disclosure of relevant information in the mediation process. If the mediator believes the
parties are not acting in good faith, he or she 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 must
define the rules by which the mediation is conducted. The duties and responsibilities of each participant should be clear. The parties
should understand that they (individually or collectively) or the mediator has the right to voluntarily suspend or terminate the
process at any time.
8. Costs and Fees
A mediator has a duty to explain fees for payment of services. Mediation is not based on contingency fees or percentages of the
outcome of the settlement. When setting fees, the mediator assures that they are explicit, fair, reasonable and commensurate with
services to be performed. Any unearned fees will be promptly returned to participants. No commissions, rebates, or similar forms of
remuneration are given or received for referral of clients for mediation services.
9. Independent Legal Counsel
Mediators should encourage parties to seek independent legal counsel during the process, if appropriate, and will inform the parties
that mediation is not a substitute for legal counsel.
II. 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 must inform the parties that he or she is compelled by law to report to appropriate authorities
information about child abuse, neglect or abandonment. Mediators are strongly encouraged to report to the appropriate authorities
threat of injury to self or others, unless required to do so by other professional standards.
3. Legal Testimony
A mediator will refrain from testifying at court proceedings without the consent of all parties. However, the mediator should explain
to the parties that he or she may be compelled to testify as a result of judicial rule.
4. Storage and Disposal of Records
A mediator has a duty to store and dispose of records in a confidential and professional 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.
III. Impartiality
1. Prior Relationships
A mediator will disclose to the participants any prior affiliations he or she may have with parties prior to the start of mediation. If prior services
have been provided to any of the participants, mediation will not proceed until the relationship has been discussed, the role of the mediator has
been made distinct from the earlier relationship, and the participants voluntarily agree 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 as a
neutral third party.
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 will 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 might cause a conflict of
interest.
5. Promotion of Understanding
The primary responsibility for the resolution of the dispute rests with the participants. The mediator has a duty to assist the participants in
reaching an informed and voluntary settlement. At no time should a mediator coerce a party into agreement or make a substantive decision for
any participant. The mediator will promote understanding and will 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 where qualified by training and experience. The mediator should only provide an interpretation or advice
based upon the mediator's area(s) of expertise.
IV. Concluding Mediation
1. With Agreement
When participants reach mutual agreement, the mediator will discuss the process for formalizing and implementing the memorandum of
understanding. When partial agreement is reached, the mediator will 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.
V. Publicity and Advertising
1. Truth in Advertising
A mediator will not make false or misleading statements regarding his or her own abilities and qualifications, or about the
mediation process and its costs and benefits.
V1. Professional Relationships
1. Relationships with other Mediators
In situations where more than one mediator is participating, each has a duty to 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.
VII. 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.
VIII. 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 has a duty to promote the advancement of mediation by encouraging and participating in research, publishing
or other forms of professional and/or public information and education.
*These standards will probably be used as the basis for a jury instruction in the even you
are sued for professional negligence. They can be argued to establish your duty of care.
How Attorneys Fit With
Mediation
Attorney conduct in mediation is
Conduct.
governed by Idaho Rules of Professional
Ethical
Dilemma
Separating mediation from counseling and legal advice - You are mediating with two
parties and the conflict centers around default of contract on a construction job. You
are a former contractor and worked extensively with construction agreements for
over twenty years. You realize the disputants are in error over one portion of the
contractual agreement in question. You know that you could explain the contract in
a way they would both understand, yet they have not solicited this information from
you. The parties have, however, discussed calling their respective attorneys and
having them explain the situation. You don’t believe this is necessary, yet you would
not discourage independent counsel. What do you do?
Ethical Dilemma
Your mediation practice is part-time. Your full-time job is as a paralegal in an attorney’s
office. You have had an excruciating day at the office; you skipped breakfast, lunch is
rebelling in your stomach, and you only had time to grab an energy drink on your way to
your scheduled evening mediation. Your day started with some nasty words between your
teenager and you, leaving you irritated when you think of it. You have not been sleeping
well all week because of the difficult case you are working on at the office, and now your
head hurts. What do you do?
Ethical Dilemma
Calling the mediation over – You have a divorce/child custody mediation scheduled for a
three hour initial session. You schedule the session to begin at 1:30 pm. At 4:30pm you
believe the session is going well and headway is being made. With the parties agreement
you all continue. At 5:30 pm you notice some of the progress made earlier seems to be
deteriorating, and the parties are becoming less communicative and more adversarial.
You mention to the parties that this could be a good place to stop. Both parties snap at
you that they are good to go. What do you do?
Ethical Dilemma
When it goes bad/Losing self-determination – You have been mediating for almost three hours
with two neighbors who cannot agree over an amount that is fair for damage to a fence. The
debate/negotiation has been going on for some time. You have employed caucus, all of your
impasse-breakers, and you just don’t see a resolution coming from this. You summarize for
the parties and state that you don’t believe they will come to an agreement at this point and
you would like to end the mediation, at least for today. Both parties beg you to stick with
them because they have resolved all of the other issues, just not a number. They implore you
to come up with a figure that you feel is fair for the damage to the fence. They state you have
heard both sides, and you are impartial, so you should be able to give a number that would
satisfy they both. The parties take it a step further by agreeing to abide by your decision.
What do you do?
Time for Post-Test
Test Review
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15.
Ethics are flexible, based on each individual’s profession, and ethics in one area of life don’t apply to other areas. FALSE All REVIEWED
RESOURCES, , I.M.A. Ethics and Standards of Practice for Idaho Mediators
Parties in a mediation can bring whomever they choose as support in mediation without limit. TRUE Uniform Mediation Act § 9-810
Non-attorney mediators are held to the Idaho Bar Associations Standards of Professional Conduct as well as attorney-mediators. FALSE
I.S.B. Model Standards of Conduct for Mediators
Ongoing training for mediators is not indicated in Idaho Court Rules. FALSE I.R.C.P. 16(k), I.R.C.P. 16(j)
Awareness of bias is important for a mediator. TRUE I.S.B. Model Standards of Conduct for Mediators , I.M.A. Ethics and Standards of
Practice for Idaho Mediators
It is ethical to accept a gift from a mediation party if it is culturally insulting to refuse said gift. TRUE I.S.B. Model Standards of Conduct for
Mediators,
It is ethical to postpone a mediation session because you have been prescribed a painkiller that makes you sleepy. TRUE TRUE I.S.B. Model
Standards of Conduct for Mediators , I.M.A. Ethics and Standards of Practice for Idaho Mediators
It is ethical to maintain a referral relationship with an attorney who also has a mediation practice. TRUE I.S.B. Model Standards of Conduct
for Mediators, I.M.A. Ethics and Standards of Practice for Idaho Mediators
One must be a current member of the Idaho Bar Association to be listed on the Idaho Supreme Court Roster of Civil Case Mediators. TRUE,
I.R.C.P. 16(k)
The Idaho Bar Association adopted the ABA’s Model Standards of Conduct for Mediators in 2005. TRUE I.S.B. Model Standards of Conduct
for Mediators,
It is okay to try to use coercion to convince a disputant that mediation is right for their situation. FALSE I.S.B. Model Standards of Conduct
for Mediators, I.M.A. Ethics and Standards of Practice for Idaho Mediators
Any conflict of interest can preclude you from mediating a case. TRUE I.S.B. Model Standards of Conduct for Mediators, , I.M.A. Ethics
and Standards of Practice for Idaho Mediators
It is okay to say “let me help them see it YOUR way” on your business card. FALSE I.S.B. Model Standards of Conduct for Mediators,
I.M.A. Ethics and Standards of Practice for Idaho Mediators
It is ethical to mediate a divorce/child custody dispute without training specific to divorce and child custody. FALSE I.R.C.P. 16(j), I.S.B.
Model Standards of Conduct for Mediators, I.M.A. Ethics and Standards of Practice for Idaho Mediators
Experienced certified professional mediators have an ethical responsibility to mentor new mediators. TRUE , I.M.A. Ethics and
Standards of Practice for Idaho Mediators
Merriam-Webster. (2011). Merriam-Webster Dictionary: Ethics. http://www.merriamwebster.com
Idaho Mediation Association. (2011) .Idaho Mediation Association Standards of Practice for Idaho
Mediators. www.idahomediates.org.
Idaho Uniform Mediation Act , I.S.C .18 § 9-801 through 9-814.
American Bar Association. (2005) Model Standards of Conduct for Mediators.
“Ten Ways to Get Sued: Guidelines for Mediators”
The following information was provided by Pamn Madarieta, Child Custody/Co-Parenting
Mediation in October, 2009.
1. Failure to disclose a conflict of interest.
2. Breach a specific promise regarding structure or outcome.
3. Engage in the practice of law.
4. Practice law badly.
5. Breach confidentiality externally.
6. Breach confidentiality Internally.
7. Maintain confidentiality inappropriately.
8. Advertise falsely.
9. Inflict emotional distress on a disputant.
10. Commit fraud.
Moffitt, M. (2003) Ten Ways to Get Sued: A Guide for Mediators. Harvard Negotiation Law Review, 8 (81).