Model Standards of Mediator Conduct: Time for Revision?

FOIs Erin Archerd (Detroit Mercy Law) & Kristen Blankley (Nebraska College of Law) sent me the following for posting, which I am very happy to do:

Is it time to revise the Model Standards for Mediators? An informal gathering at the Spring ABA Dispute Resolution Conference considered this question, with follow-up discussions in both the ABA Section on Dispute Resolution Ethics Committee and the Committee on Mediator Ethical Guidance.

A number of questions have been raised in the course of these discussions, and we wanted to highlight a few of them for Indisputably readers, to get your feedback on whether you think the Model Standards are ripe for revision, or whether a different approach might be called for to address the needs of 21st Century dispute resolution.
What ethical dilemmas have arisen that are not well-answered by the Model Standards? Outgoing ABA DR Chair Nancy Welsh posed this question as a way of framing the discussion.

We’ll talk about some of the areas we were considering in this post, largely by framing questions rather than offering answers. Please comment with any additional areas we should be considering.

One of the biggest areas where practitioners and scholars have questioned the current Model Standards is in their application to Online Dispute Resolution (ODR). Does the mediator imposing communication technology run afoul of party self-determination? What if the mediator has a monetary interest in the company producing the technology? How do we measure whether a mediator is competent in using and explaining the technology? How does confidentiality apply to 4th party technology developers and 5th party Internet service providers (whose records may be subpoenaed, for example)? Susan Nauss Exon has a forthcoming article looking at many of these issues.

Are the Model Standards doing enough to address issues of solicitation and client relationships? Can mediators approach parties and offer to mediate a conflict? Can a mediator date a former mediation client? Should the Model Standards be doing more to address imbalance and unrepresented parties? Should they reflect access to justice more strongly? One Ethics Committee member pointed out there was not enough guidance in the Model Standards for situations in which only one party is represented by counsel.

Should a mediator’s obligation to ensure participant safety be laid out in the Model Standards? Mediators think about safety extensively, so why isn’t this reflected in the Model Standards? What does the impartiality standard’s call for “freedom from favoritism, bias, or prejudice” mean in practice? In recent years, there has been a push to have mediators increase their awareness of implicit biases that might be influencing them during a mediation. But could mediators use explicit bias or prejudice in choosing their cases in the first place? Kristen Blankley has an upcoming article on that question: Is a Mediator A Bus? How Legal Ethics May Inform The Question of Case Discrimination by Mediators, forthcoming Gonzaga L. Rev. (Summer 2017).

Another threshold question is whether dispute resolution – ODR, med-arb, facilitation, etc. – has developed to the point that processes that are not mediation, but which share some elements and are often conducted by mediators, should be included within the Model Standards. Do we expand the focus of the Model Standards to include some of these processes?
Are there excessive roll-out costs to revising the Model Standards at this time? A number of court mediation programs, for example, are modeled on the current Standards. Changes would involve a great deal of feedback gathering throughout the country.
On the other hand, many states are already adapting and changing their standards for mediators and other ADR professionals, so that process of feedback gathering would likely be useful in getting a better view of current standards throughout the country, including ways in which those state standards may conflict with the Model Standards. One issue that came up in the Ethics Committee was different policies across states about mediators drafting agreements and concerns about the unauthorized practice of law. Should the Model Standards address drafting by mediators or more clearly emphasize that mediation is not the practice of law?
Finally, is there an intermediate step that would could be taking? Could we start with illustrative comments to the Model Standards that would help guide ODR or other practitioners in issues they should be considering as they apply the Model Standards to their practice?
We know these questions are only the beginning. Please comment below with your additional thoughts and ideas.

6 thoughts on “Model Standards of Mediator Conduct: Time for Revision?”

  1. Thank you for this post!
    I recently had an article on that question with some thoughts and ideas that readers might find useful:
    “A Critical Assessment of the Model Standards of Conduct for Mediators (2005): Call for Reform,” 100 Marquette L. Rev. 81-136 (2016)
    Best,
    Omer

  2. I hope that, if the standards are revised, that the process will include significant opportunities for stakeholder involvement and collaboration among practitioners organizations, including but not limited to the Association for Conflict Resolution and the American Arbitration Association. Such was the case for the 2005 revisions. Further, in addition to the issues noted in the article above, those working on this should look at how the standards can help advance the importance of diversity, equity, and inclusion in our field, while also helping to make sure that mediation is widely embraced by all.

    1. Pleased to see your continued work in the field Erin! I would add NAFCM to the list above and any state agencies of dispute resolution. Since the areas of mediation and restorative justice appear to be blurring under the umbrella title restorative practices (ACR now has now merged community mediation with RJ sections – see below) in some areas could this complicate matters further?
      “This Section of ACR highlights the restorative practice approaches which arise out of the principles and assumptions of Restorative Justice. Restorative Practices include community mediation in many forms and settings, as well as innovative alternative dispute resolution programs in criminal and community justice-making.”

    2. Thank you Lou Gieszl for your comment. I would like to add the inclusion of the Association of Family and Conciliation Courts.

  3. After the model standards came out, there was lively discussion among the members of the Environment and Public Policy section of the Association for Conflict Resolution about whether the standards fit the work that neutrals do in the public policy field. Eventually, the section adopted its own voluntary guidelines based on the model standards but quite different in some respects. http://www.acrepp.dreamhosters.com/wp-content/uploads/2016/01/Ethical-Guidance-for-EPP-members-Sept-2011.pdf

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