Readers will note that the Code follows generally accepted principles, adding little to the way any competent mediator operates. However, it must provide comfort to litigants, particularly in cross-border disputes and circumstances where the application and use of mediation is not as advanced as it is in the United Kingdom.
This code of conduct sets out a number of principles to which individual mediators can voluntarily decide to commit, under their own responsibility. It is intended to be applicable to all kinds of mediation in civil and commercial matters.
For the purposes of the code, mediation is defined as any process where two or more parties agree to the appointment of a third-party – hereinafter “the mediator” - to help the parties to solve a dispute by reaching an agreement without adjudication. Adherence to the code is without prejudice to national legislation or rules regulating individual professions.
1. Competence and appointment of mediators
Mediators shall be competent and knowledgeable in the process of mediation.
The mediator will confer with the parties regarding suitable dates on which the mediation may take place. The mediator shall satisfy him/herself as to his/her background and competence to conduct the mediation before accepting the appointment and, upon request, disclose information concerning his/her background and experience to the parties.
1.3 Advertising/promotion of the mediator’s services
Mediators may promote their practice, in a professional, truthful and dignified way.
2. Independence and impartiality
2.1 Independence and neutrality
The mediator must not act, or, having started to do so, continue to act, before having disclosed any circumstances that may, or may be seen to, affect his or her independence or conflict of interests. The duty to disclose is a continuing obligation throughout the process. Such circumstances shall include - any personal or business relationship with one of the parties, - any financial or other interest, direct or indirect, in the outcome of the mediation, or - the mediator, or a member of his or her firm, having acted in any capacity other than mediator for one of the parties. In such cases the mediator may only accept or continue the mediation provided that he/she is certain of being able to carry out the mediation with full independence and neutrality in order to guarantee full impartiality and that the parties explicitly consent.
The mediator shall at all times act, and endeavour to be seen to act, with impartiality towards the parties and be committed to serve all parties equally with respect to the process of mediation.
3. The mediation agreement and fees
The mediator shall satisfy himself/herself that the parties to the mediation understand the mechanics of the mediation process and the role of the mediator and the parties in it. The mediator shall in particular ensure that prior to commencement of the mediation the parties have understood and expressly agreed the terms and conditions of the mediation agreement including in particular any applicable provisions relating to obligations of confidentiality on the mediator and on the parties. The mediation agreement shall, upon request of the parties, be drawn up in writing. The mediator shall conduct the proceedings in an appropriate manner, taking into account the circumstances of the case, including possible power imbalances and the rule of law, any wishes the parties may express and the need for a prompt settlement of the dispute. The parties shall be free to agree with the mediator, by reference to a set of rules or otherwise, on the manner in which the mediation is to be conducted. The mediator, if he/she deems it useful, may hear the parties separately.
3.2 Fairness of the process
The mediator shall ensure that all parties have adequate opportunities to be involved in the process. The mediator if appropriate shall inform the parties, and may terminate the mediation, if:
-a settlement is being reached that for the mediator appears unenforceable or illegal, having regard to the circumstances of the case and the competence of the mediator for making such an assessment, or
-the mediator considers that continuing the mediation is unlikely to result in a settlement.
3.3 The end of the process
The mediator shall take all appropriate measures to ensure that any understanding is reached by all parties through knowing and informed consent, and that all parties understand the terms of the agreement. The parties may withdraw from the mediation at any time without giving any justification. The mediator may, upon request of the parties and within the limits of his or her competence, inform the parties as to how they may formalise the agreement and as to the possibilities for making the agreement enforceable.
Where not already provided, the mediator must always supply the parties with complete information on the mode of remuneration which he intends to apply. He/she shall not accept a mediation before the principles of his/her remuneration have been accepted by all parties concerned.
The mediator shall keep confidential all information, arising out of or in connection with the mediation, including the fact that the mediation is to take place or has taken place, unless compelled by law or public policy grounds. Any information disclosed in confidence to mediators by one of the parties shall not be disclosed to the other parties without permission or unless compelled by law.