Framework for Regulation of Mediation Ethics and Targets of Ethical Binding
Keywords:
mediation ethic, party self-determination, Neutrality, conflict of interest, competence, confidentiality, quality of the process, advertising, solicitation, mediation fees, mediation charges.Abstract
Following formation of mediation legal framework, timely introduction of ethical rules is essential and inevitable necessity for comprehensive development of the corresponding practice. Representatives of parties to the mediation, third parties, mediation centres, exercising mediation administration – so called “mediation service providers” are also considered as targets of ethical standards in international practice in addition to mediators. Existence of standards of mediation ethics, is indicative of mediation professionalization, since representatives of mediation domain undertake responsibility for their own professional behaviour in accordance with the above mentioned standards.
The paper reviews necessity of ethical regulation of mediation in Georgia and existing challenges, difficulties of enforcement of ethical norms, addresses of ethical limitations and set of issues which is appropriate to be covered by the Code of Mediation Ethics.
References
Ireland, Draft General Scheme of Mediation Bill, 2012, Head 10.
German Mediation Act, 2012, Section 4.
Greece, Law on Mediation in Civil and Commercial Disputes, 2010, Art. 10.
Estonia Conciliation Act, 2009, Section 4 (5).
Bulgaria Mediation Act, 2004, Art. 7.
Uniform Mediation Act, 2003.
Civil Mediation Council – Draft Code of Good Practice for Mediators, 2009.
Law Society (England and Wales) Code of Practice For Civil/Commercial Mediation, 2009.
Law Society (England and Wales) Code of Practice For Family Mediation, 2009.
CEDR Solve Code of Conduct for Neutrals, 2008.
European Code of Conduct for Mediators, 2004, <http://ec.europa.eu/civiljustice/adr/adr_ec_code_conduct_en.pdf>.
CDR Associates in Boulder, Colorado.
Cepani (Belgium) Rules of Good Conduct, .
College of Mediators Code of Practice for Mediators, .
Core Solutions Group Code of Conduct for Mediators, Scotland, .
Code of Conduct for NMI Registered Mediators, .
IMI Code of Professional Conduct, .
National Association of Social Workers (NASW).
Model Standards of Conduct for Mediators, AAA, ABA, ACR, 1994, Revised 2005, Standards I (1), II (B) (1), III (C), (E). (F), IV (A) (1), IV (A) (2) (3), (B), V (A)(2), VI (A) (B) (C).
Standards for Private and Public Mediators in the State of Hawaii, 1986 (revised in 2003).
A Draft of Principles of ADR Provider Organizations, CRP-Georgetown Commission on Ethics and Standards in ADR, 1999, 2000-2002, Principles I, III, IV, VI, IX.
A Draft of Principles of ADR Provider Organizations, CRP-Georgetown Commission on Ethics and Standards in ADR, 1999, 2000-2002, Principle I, Ensuring Competence and Quality in Dispute Resolution Practice, Report No. 2, of the SPIDR Commission on Qualifications, April 1995.
Special Standards of Practice for Postal Service Mediations, 1998.
National Standards for Court-Connected Mediation Programs, Center for Dispute Settlement and Institute of Judicial Administration, 1992, Standards 1.0, 6.1, 2.1, 2.6, 1.4, 3.2, 4, 4.2, 5.1, 6.5, 6.1, 6.6, 9.1, 9.1 (d),11.1, 11.0-11.2, 16.1,
Texas Association of Family Mediators (founded 1985), Texas Association of Mediators (TAM) (1990).
Standards of Practice for Lawyer Mediators in Family Disputes (Adopted by the House of Delegates of the American Bar Association, August 1984.
ABA Model Rules of Professional Conduct and ABA Model Code of Professional Responsibility, 1983.
Black’s Law Dictionary, 573, 7th ed. 1999.
Alfini J.J., Press Sh. B., Stulberg J.B., Mediation, Theory and Practice, Reporter’s Notes, 3rd ed., LexisNexis, 2013, 305, 325, 422-424, 612, 614, 617, 619, 620-623, 625.
Berger M.J., Should an Attorney be Required to Advise Client of ADR Options? Geo J. Legal Ethics, Vol. 13, 2000, 427.
Bush R. A. B., Efficiency and Protection or Empowerment and Recognition? The Mediator’s Role and Ethical Standards in Mediation, Fla. Law Rev., Vol. 41, 1989, 253, 280.
Cochran R.F., Legal Representation and Next Steps toward Client Control, Attorney Malpractice for the Failure to Allow Client to Control Negotiation and Pursue Alternatives to Litigation, Wash. and Lee Law Rev., Vol. Vol. 47, 1990, 819.
Esplugues C., Louis M., New Developments in Civil and Commercial Mediation, Global Comparative Perspectives, Ius Comparatum, Springer International Publishing Switzerland, 2015, 55.
Garner B. (ed.), Black’s Law Dictionary, 8th ed., Thomson West, 2004, 1315.
Herring J., Legal Ethics, Oxford University Press, Great Britain, 2014, 310, 313.
Kovach K.K., Lawyer Ethics in Mediation: Time for a Requirement of Good Faith, 4 Disp. Resol. Mag., 1997-1998, 9-13.
Kovach K.K., Mediation, Principles and Practice, 3rd ed., Thomson West, United States of America, 2004, 395-397, 400-404, 425-427.
Laurence B., Nesic M., Mediator Skills and Techniques: Triangle of Influence, European Code of Conduct for Mediators , Athenaeum Press, Great Britain, 2010, 642.
Pritchard M.S., Professional Integrity: Thinking Ethically, Univ. Pr. of Kansas, 2006, 87.
Raske H.J., Promoting Better Supervision, A.B.A.J., Vol. 79, 1993, 32.
Riskin L.L., Awareness and Ethics in Dispute Resolution and Law, Why Mindfulness Tends to Foster Ethical Behavior, Tex. L. Rev., Vol. 50:493, 2009, 496-498.
Shapira O., A Theory of Mediator’s Ethics, Cambridge University Press, 2016, 187,161, 118, 119, 179, 180.
Sharp D., The Washington, D.C. Lawyer and Mediation Confidenciality: Navigatinh the Complex and Confusing Waters, 7 Appalachian J. L., 2007-2008, 200.
Sherill J.A., Ethics for Lawyers Representing Clients in Mediation, 6 Am. J. Mediation, 2012, 29-30, 37-38.
Trevor M.B., Palo G., EU Mediation Law and Practice, Oxford University Press, 2012.
Ware S.J., Principles of Alternative Dispute Resolution, 2nd ed., Concise Hornbook Series, Thomson West, 2007, 323.
Welsh N., The Thinning Vision of Self-determination in Court-Connected mediation: the Inevitable price of Institutionalization, Harvard Negotiation Law Review, Vol. 6, 2001, 1.
Wilson B., Mediation Ethics: An Exploration of Four Seminal Texts, 12 Cardozo J. Conflict Resol., 2010-2011, 122, 120.
Young M., Rejoice! Rejoice! Rejoice, Give Thanks and Sing: ABA, ACR and AAA Adopt Revised Model Standards of Conduct for Mediators, Appalachian Journal of Law, Vol. 5, 2006, 195, 199.
Waldman E., Mediation Ethics, Cases and Commentaries, Jossey-Bass, A Wiley Imprint, United States of America, 2011, 10,12, 13, 14, 339, 340, 341, 346, 347, 348.
Zamir R., The Dispowering Relationship Between Mediator Neutrality and Judicial Impartiality: Toward a New Mediation Ethic, 11 Pepp. Disp. Resol. L.J., 2010-2011, 467.
Zaleniene I., The Main Features and Development Trends of Mediation in Lithuania: the Opportunities for Lawyers, Jurisprudence 2010, 1(119), 233, 234.
