Michigan’s Proposed Standards of Conduct for Mediators

New Standards of Conduct for Mediators were proposed by Michigan’s State Court Administrative Office last week. They can be viewed at by clicking on the title above, or by going to this web-site:  http://courts.michigan.gov/scao/features/mailings/2011/11-10-11/MediatorStandardsOfConduct.pdf.

 The public comment period runs through the end of February 2012. I hope many people comment on them, because they break new ground and could be a significant contribution to the field of mediation nationally.
These Standards break new ground in that they apply to both general civil and domestic relations mediators. We could not find a set of Standards of Conduct for Mediators that did this, so we basically developed our own. I had the privilege of serving on the sub-committee that developed these standards, and on the larger committee that refined them for general approval, both convened by the State Court Administrative Office.
The American Bar Association joined with the Association for Conflict Resolution and with the American Arbitration Association to develop the Model Standards of Conduct for Mediators; these were first published in 1994, and revised in 2005. Michigan’s current Standards of Conduct for Mediators are based on these Model Standards. However, they do not address some of the ethical issues that arise in divorce mediation, so divorce mediators are advised to consult the Model Standards of Practice for Family and Divorce Mediation, which were first developed by The Association of Family and Conciliation Courts in 1984, and thoroughly revised in 2000 by a consortium of family mediation organizations, including the ABA’s Family Law Section, the Academy of Family Mediators and the AFCC.
Our sub-committee, comprised of Zena Zumeta, Barbara Johannessen, Susan Butterwick and myself—all mediators and mediation trainers who do both domestic and general civil mediations—yearned for one set of Standards that would cover all aspects of mediation. Not only is it cumbersome to be familiar with two sets of Standards, but some cases – such as child neglect placement or adult guardianships — do not clearly belong under either Standards. Barb J gets credit for undertaking the daunting task for overlaying the two sets of Model Standards to try to develop a common thread. We ultimately opted to adhere to the format of the general civil Model Standards, with its nine categories, incorporating many of the principles from the Family and Divorce Mediation standards.
We followed some “guiding principles” as we developed these standards:
• Adhere to Model Standards language as much as possible; unless we had a good reason to alter the language, we retained the Model Standards phrasing. Thus, many portions of these Michigan Standards mimic the Model Standards, including the first sentences of most of the nine major Standards.
• Knowingly redundant; some principles apply to more than one topic so we mentioned the same principle in two locations. For example, the requirement that the mediator continually assess whether a party is physically or emotionally unsafe is found under both “Competence” (IV.B.) and under “Quality of the Process” (VI.A.4.a)
• Distinguish between “parties” and “participants;” the mediator owes a slightly different obligation to the decision-makers in the mediation than to the other people who attend the mediation so we carefully determined where that line was. Thus, the Standard on Self-determination applies only to parties (Standard I), whereas the Standard on Impartiality (Standard II) applies to all participants.
• Distinguish between “shall” and “should.” In general, the first sentence of each standard is the “shall” – the ethical principle – and subsequent provisions flesh out the principle with both “shall” and “should.” Thus, a mediator shall conduct a mediation impartially, and should neither give nor accept a gift from a party (II.A.2).
• Everything in this set of standards is part of the standard itself, in contrast with the Model Standards, which include both principles and commentary.
• Everything is stated as a standard, and not simply a suggestion. Thus, for example, we omitted the observation in the Model Standards (I.A.2.) that a mediator should make parties aware of the importance of consulting outside experts.
• Omit general statements; e.g., we omitted this statement found in the Model Standards: “The role of a mediator differs substantially from other professional roles.”
The one aspect of these Proposed Standards that differs significantly in format from the Model Standards is Standard VI, “Quality of the Process.” In the Model Standards, this Standard simply enumerates a variety of topics 1 through 10, dis-connected from one another. We chose to organize the principles in this section under several sub-headings: Diligence and timeliness; Participants and participation; Procedural fairness; Safety and appropriateness of mediation; and the Role of the mediator. We did this to make these Standards “user-friendly,” so that a mediator who needs specific advice can more readily find it in the Standards.
While these proposed Standards contain much more information than Michigan’s current Standards, which are only two pages long, they do not depart significantly from either set of Model Standards in substance. However, for general civil mediators who have never consulted the Family and Divorce Mediation standards, the provisions relating to safety and well-being of participants, and reporting suspected abuse, will be unfamiliar.
The most challenging aspect of these Standards for the committee concerns the role of the mediator: when a mediator offers to propose a resolution, is the neutral still acting as a mediator, or is the neutral now serving in another role, namely, as an arbitrator? The proposed Standards advise a mediator to undertake an additional role carefully, mindful of maintaining impartiality and party self-determination (VI.B).
Michigan mediators would do well to review these proposed Standards carefully, to consider whether these articulate the Standards of Conduct that should guide Michigan mediators. Some courts’ ADR Plans (such as Kent and Grand Traverse) permit a court to remove a mediator from the court roster for failing to adhere to the Standards of Conduct for Mediators, so these Standards may not be merely advisory.
It is hoped that these Standards set a high bar for the unregulated “profession” of mediators, instilling public confidence in mediators and making us proud to be practitioners of this wonderful process.

One Comment

  1. Posted December 18, 2015 at 11:00 pm | Permalink

    can’t really go wrong with meoitadr in my opinion. mediation is one of those services that yes it cost 200 bucks or so, but if you don’t do it, then you’ll never know how much money you could’ve saved.

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