Too Many Standards of Conduct?

Too Many Standards of Conduct?

History of Michigan’s Standards of Conduct for Mediators
The State Court Administrative office convened a committee a couple years ago to review Michigan’s Standards of Conduct for Mediators and recommend any needed changes. Michigan’s Standards were adopted in 2001, based on the Model Standards of Conduct for Mediators of general civil cases – but the Model Standards were revised in 2005 and it seemed appropriate at least to consider whether Michigan’s needed similar revisions.

Michigan’s current Standards are very cursory; they run to two pages, whereas the Model Standards go on for eight pages. Michigan’s Standards basically took the first sentence or two from each of the nine Model Standards, without the accompanying explanation that fleshes out the principle. For example, Michigan’s current Standard on self-determination consists of two sentences, stating that mediation is based on party self-determination, with a simple definition of the term. The Model Standards contain four paragraphs on this Standard, delving into much more detail about the extent, timing, and challenges of implementing the principle of party self-determination.

Not surprisingly, the committee that reviewed Michigan’s Standards of Conduct (of which I was a member) determined that they needed a thorough revision. We felt that the current Standards did not provide nearly enough guidance to mediators on how to deal with ethical dilemmas, nor did they give enough information to alert mediators to potential ethical dilemmas. For example, mediators have gotten into trouble for failing to recognize that a party has, by the end of the mediation, lost her ability to make good decisions—in legal terminology, that she no longer has the capacity to contract. She may have been fine at 9 am, but by 6 pm, she is tired, her medication is wearing off, or whatever, so she later tries to get out of the agreement and blames the mediator for forcing her to sign it. (A famous example is Olam v. Congress Mortgage, 68 F. Supp. 2d 1110 (ND Calif, 1999). See also, Guthrie v Guthrie, 259 Ga App 751 (2003)). The Model Standards thus specify that mediators have an ethical obligation, throughout the mediation, to ensure a party’s capacity to mediate. Michigan’s Standards nowhere mention this important principle.

Proposed Revised Standards of Conduct
The State Court Administrative Office (SCAO) has therefore proposed a revised version of the Standards of Conduct for Mediators that not only provides the kind of detailed guidance found in the Model Standards, but also covers all types of mediations, including domestic relations, general civil, and probate. I wrote about highlights of these proposed Standards in my blog in November 2011. SCAO posted the Standards for comment this past winter, and convened the Standards Committee again last month to address the comments received. A modified revision will be forthcoming shortly.

Meanwhile, I have had the privilege of training Michigan mediators in these proposed Standards, and have received a wide range of reactions to them. Mediators with a varied practice are generally relieved to have only one set of Standards to consult. Some appreciate the specific reminders in this lengthier version—e.g., that fee arrangements should be in writing, that a mediator should withdraw from illegal agreements, that both the parties and the mediator should determine who participates in the mediation.

Complaints about the proposed Standards
But others have expressed concern about these new Standards. Will these more specific provisions give parties more grounds for grievances against their mediator? Is it too much for a mediator to try to remember? Do they set the bar too high? If no one was complaining about mediator behavior, why mess with success? Did we really need new Standards of conduct? One mediator told me sadly that these proposed Standards will take away her joy in mediating, because now she’ll be worried at every turn that she might be violating one of the innumerable provisions. Another commented that, if he had learned all these Standards when he first got trained to mediate, he would never mediate, out of fear.

A lawyer-mediator complained to me that it’s in the nature of committees to complicate the simple, and to elaborate on the concise. He sees the current Standards more like the Constitution—a concise, pithy document–, and the proposed Standards more like regulations that number into the thousands, anticipating problems no one has. “Regulations should not overwhelm the mediation process and reduce it to the IRS code, beset with minefields,” he said.

My response to the complaints
Parties rarely sue, or even complain about, their mediator—and even if they did, I don’t think that’s a good reason to reject more thorough standards of conduct. The absence of complaints about mediators doesn’t mean that mediators can stagnate; we should always strive to improve our practice. I see the proposed Standards as a much more helpful tool for mediators, both outside of and during a mediation, than the current Standards, which never seem to answer my particular question regarding ethical obligations. I don’t think the proposed Standards set a higher bar than the current Standards—at least, not too much higher. I think they provide better explanations of what that bar is, and how to attain it. But the bottom line is that I’m not objective. I helped draft these Standards, so there’s definitely some pride of authorship. I’m sort of a “geek” about Standards; they give me comfort – I love knowing that better minds than mine have carefully thought about potential problems and how to avoid or navigate through them.

What do you think? Are Michigan mediators better off with ten pages of ethical standards, or two?

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