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Code of conduct for Mediators and Third Party Neutrals

All of ProMediate’s panel of Mediators comply with ProMediate’s code of conduct for Third Party Neutrals and the European Code of Conduct for Mediators.

Code of Conduct for Third Party Neutrals

1. Introduction

This Code of Conduct (‘the Code’) applies to any person who acts as a Mediator or other neutral third party (‘the Neutral’) in any dispute resolution procedure (‘the Process’) conducted under the auspices of ProMediate in relation to an attempt to resolve a dispute or difference (‘the Dispute’) between all the parties (‘the Parties’) to the Dispute under the terms of a written agreement signed by the Parties, the Neutral and ProMediate (the Process Agreement’) to seek resolution of the Dispute.

This code is consistent with the European Code of Conduct for mediators.

2. Competence and availability

The Neutral assures the Parties that he or she:

2.1 possesses the necessary competence and knowledge about the Process to deal with the Dispute, based on proper training and updating of education and practice in the necessary skills, as required by the regulations of the country of practice; and

2.2 has sufficient time to prepare properly for and conduct the Process expeditiously and efficiently.

2.3 does not present his or her skills or background in all promotional material in any way which is not truthful or professional.

3. Fees and expenses

The Neutral undertakes:

3.1 to make clear either directly to the Parties or through ProMediate the basis for charging fees and expenses as between ProMediate and the Parties for the conduct of the Process before the Process starts; and

3.2 not to prolong the Process unnecessarily where there is, in the Neutral’s opinion, no reasonable likelihood of progress being made towards settlement of the Dispute through the Process.

4. Independence and neutrality

The Neutral:

4.1 will at all times act, and endeavour to be seen to act fairly, independently and with complete impartiality towards the Parties in the Process, without any bias in favour of, or discrimination against, any of theParties;

4.2 will ensure that the Parties and their representatives all have adequate opportunities to be involved in the Process;

4.3 will disclose to the Parties any matter of which the Neutral is or at any time becomes aware which could be regarded as being or creating a conflict of interest (whether apparent, potential or real) in relation to the Dispute or any of the Parties involved in the Process, and, having done so, will not act or continue to act as

Neutral in relation to the Dispute unless the Parties specifically acknowledge such disclosure and agree to the Neutral’s continuing to act in the Process: such matters include but are not limited to:
a) Any personal or business relationship with any of the Parties;
b) Any financial or other interest in the outcome of the Mediation;
c) having acted (either personally or through the Neutral’s own firm or business) in any capacity other
than as a Neutral in another Process for any of the Parties;
d) being in prior possession of any confidential information about any of the Parties or about the
subject-matter of the Dispute (but excluding any confidential information given to the Neutral by
one of the Parties while acting as Neutral in relation to the Dispute)
e) any such matters involving a close member of the Neutral’s family.
4.4 will not (nor will any member of the Neutral’s own firm or business or close family) act for any of the Parties individually in relation to the Dispute either while acting as Neutral or at any time thereafter, without the written consent of all the Parties.
5. Conduct of the Process
5.1 The Neutral will observe all the terms of the Process Agreement (especially as regards confidentiality) and will conduct the Process consistent with any relevant ProMediate Model Procedure.
5.2 The Neutral will ensure that the Parties understand the obligations of the Process Agreement, including obligations relating to confidentiality.
5.3 Where there is resolution during the Process, the Neutral will direct the Parties to record any settlement in signed writing and ensure that the signatories acknowledge that by signing they accept and understand the terms of any settlement.
6. Professional Indemnity Insurance
The Neutral will take out professional indemnity insurance in an adequate amount with a responsible insurer against such risks as may arise in the performance of the Neutral’s duties in relation to the Dispute before acting as a Neutral.
7. Withdrawing from any Process
7.1 The Neutral will withdraw from the Process and cease to act as such in relation to the Dispute if the Neutral:
a) is requested to do so by one of the Parties, except where the Parties have agreed to a procedure
involving a binding decision by the Neutral to conclude the Process;
b) would be in breach of the Code if continuing to act as the Neutral; or
c) is required by one or more of the Parties to act or refrain from acting in a way which would be in
material breach of the Code or in breach of the law.
7.2 The Neutral may withdraw from the Process at the Neutral’s own discretion and after such consultation with the Parties as the Neutral deems necessary and appropriate (and always subject to the Neutral’s obligations as to confidentiality) if:
a) any of the Parties is acting in material breach of the Process Agreement;
b) any of the Parties is acting in an unconscionable or criminal manner;
c) the Neutral decides that continuing the Process is unlikely to result in a settlement;
d) any of the Parties alleges that the Neutral is in material breach of the Code.
8. Complaints
The Neutral will respond to, and co-operate with, any complaints procedure initiated by a Party through ProMediate in relation to the Process in which the Neutral acted, including attending (without charging a fee or claiming any expenses for attending) any meeting convened by ProMediate as part of that complaints procedure.
This code of conduct sets out a number of principles to which individual mediators may voluntarily decide to commit themselves, under their own responsibility. It may be used by mediators involved in all kinds of mediation in civil and commercial matters.
Organisations providing mediation services may also make such a commitment by asking mediators acting under the auspices of their organisation to respect the code of conduct. Organisations may make available information on the measures, such as training, evaluation and monitoring, they are taking to support the respect of the code by individual mediators.
For the purposes of the code of conduct, mediation means any structured process, however named or referred to, whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a third person – hereinafter “the mediator”.
Adherence to the code of conduct is without prejudice to national legislation or rules regulating individual professions.
Organisations providing mediation services may wish to develop more detailed codes adapted to their specific context or the types of mediation services they offer, as well as to specific areas such as family mediation or consumer mediation.
European Code of Conduct for Mediators
1.1. Competence Mediators must be competent and knowledgeable in the process of mediation. Relevant factors include proper training and continuous updating of their education and practice in mediation skills, having regard to any relevant standards or accreditation schemes.
1.2. Appointment Mediators must confer with the parties regarding suitable dates on which the mediation may take place. Mediators must verify that they have the appropriate background and competence to conduct mediation in a given case before accepting the appointment. Upon request, they must disclose information concerning their background and experience to the parties.
1.3. Fees Where not already provided, mediators must always supply the parties with complete information as to the mode of remuneration which they intend to apply. They must not agree to act in a mediation before the principles of their remuneration have been accepted by all parties concerned.
1.4. Promotion of mediators’ services Mediators may promote their practice provided that they do so in a professional, truthful and dignified way.
2.1. Independence If there are any circumstances that may, or may be seen to, affect a mediator’s independence or give rise to a conflict of interests, the mediator must disclose those circumstances to the parties before acting or continuing to act. Such circumstances include: – any personal or business relationship with one or more of the parties; – any financial or other interest, direct or indirect, in the outcome of the mediation; – the mediator, or a member of his firm, having acted in any capacity other than mediator for one or more of the parties. In such cases the mediator may only agree to act or continue to act if he is certain of being able to carry out the mediation in full independence in order to ensure complete impartiality and the parties explicitly consent. The duty to disclose is a continuing obligation throughout the process of mediation.
2.2. Impartiality Mediators must 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.
3.1. Procedure
The mediator must ensure that the parties to the mediation understand the characteristics of the mediation process and the role of the mediator and the parties in it.
The mediator must 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 any applicable provisions relating to obligations of confidentiality on the mediator and on the parties.
The mediation agreement may, upon request of the parties, be drawn up in writing.
The mediator must conduct the proceedings in an appropriate manner, taking into account the circumstances of the case, including possible imbalances of power and any wishes the parties may express, the rule of law and the need for a prompt settlement of the dispute.
The parties may agree with the mediator on the manner in which the mediation is to be conducted, by reference to a set of rules or otherwise.
The mediator may hear the parties separately, if he deems it useful.
3.2. Fairness of the process
The mediator must ensure that all parties have adequate opportunities to be involved in the process.
The mediator must 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 must take all appropriate measures to ensure that any agreement 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 must, upon request of the parties and within the limits of his competence, inform the parties as to how they may formalise the agreement and the possibilities for making the agreement enforceable.
The mediator must 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 grounds of public policy to disclose it. Any information disclosed in confidence to mediators by one of the parties must not be disclosed to the other parties without permission, unless compelled by law.