Mediator code of conduct
Learn about the code of conduct for mediators that are on the mandatory mediation roster.
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Application of code
- The Canadian Bar Association Ontario (CBAO) Model Code of Conduct applies in its entirety to all mediators under the Mandatory Mediation Program (MMP) except for section IX Fees, which is replaced by the fee regulations under the Administration of Justice Act. Additional requirements are imposed by the section of this document entitled “Additional Requirements under the Mandatory Mediation Program”.
- Any reference to the Code of Conduct under the MMP means the CBAO Model Code of Conduct for Mediators and this document.
- The Code of Conduct will apply to all mediators who have been selected by a local mediation committee to be on the roster of mediators for the MMP. While mediators may come from varied professional backgrounds and disciplines, the conduct of all mediators under the Mandatory Mediation Program must adhere to this Code of Conduct. For the purposes of this program, any conflict between this Code and the Code of Conduct of any regulated profession shall be resolved in favour of the MMP Code of Conduct.
- In the event of any conflict between the CBAO Model Code of Conduct or any other Code of Conduct binding on mediators, this document prevails under this program.
- In each county where mandatory mediation applies under the Rules of Civil Procedure, a local mediation committee will be appointed with responsibility for:
- compiling and keeping a current list of mediators in accordance with the guidelines approved by the Attorney General
- monitoring the performance of the mediators named in the list
- receiving and responding to complaints about mediators named in the list
Each local mediation committee will apply this Code of Conduct to ensure that the mediators' performance is monitored in a consistent manner across the province.
- Qualification as a mediator under the MMP confers no permanent right to the individual, but is a conditional privilege that may be revoked or may not be renewed by the local mediation committee.
Additional requirements under the Mandatory Mediation Program
In addition to the principles set out in the CBAO Model Code of Conduct, mediators selected for the roster under the MMP will be expected to conduct themselves in a manner consistent with the policies of the MMP.
- Mediators shall make the following commitments:
- to act in compliance with Rule 24.1 and Rule 75.1 of the Rules of Civil Procedure
- to provide mediation services at a fee stipulated by regulation under the Administration of Justice Act
- to advise parties in advance of the mediation of any fees and expenses for services in excess of the services covered by the fee regulation
- to conduct up to twelve hours of pro bono mediations per year in accordance with the program's Access Plan
- to maintain with proof, professional liability insurance for mediation services with a minimum coverage of one million dollars
- to act in accordance with policies and procedures including the Application Process, Undertakings, Code of Conduct, Complaints Process, Access Plan and any other policies under the MMP
- to maintain competence and participate in continuing education/training
- to act as a mentor, if requested, in accordance with the MMP mentoring policy
- to participate in program evaluations as required, including providing statistical information
- to encourage fairness within the mediation process
- to conduct themselves in a manner which will foster public understanding of and confidence in the MMP
- Mediators are expected to observe the spirit as well as the letter of the Code of Conduct.
- Mediators shall ensure that they are competent to render mediation services having regard to the nature of the dispute.
- In conducting mediations under Rule 24.1 and Rule Rule 75.1, mediators shall limit themselves to the role of mediator.
- A mediator shall not knowingly contract for mediation services which cannot be delivered or completed in a timely manner as stipulated under Rule 24.1 and Rule Rule 75.1.
- In representing themselves on promotional materials or describing their relationship to the MMP, mediators shall use only the terminology approved by the MMP.
I. Objective of model code of conduct for mediators
The main objectives of this Model Code of Conduct for mediators are to:
- provide guiding principles for mediators' conduct
- provide a means of protection for the public
- promote confidence in mediation as a process for resolving disputes
In this Model Code of Conduct, the following definitions apply:
Mediation means a process in which an impartial person (a mediator) helps disputing parties try to reach a voluntary, mutually acceptable resolution of some or all of the issues of their dispute.
Mediator means an impartial person whose role in mediation is to assist and encourage parties to a dispute:
- to communicate and negotiate in good faith with each other
- to identify and convey their interests to one another
- to assess risks
- to consider possible settlement options
- to resolve voluntarily their dispute
Impartial means being seen as unbiased toward parties to a dispute, toward their interests and toward the options they present for settlement.
Conflict of interest
Conflict of interest means direct or indirect financial or personal interest in the outcome of the dispute. This can include any existing or past financial, business, professional, family or social relationship which is likely to affect impartiality or reasonably create an appearance of partiality or bias.
III. Principle of self-determination
- Self-determination is the right of parties in a mediation to make their own voluntary and non-coerced decisions regarding the possible resolution of any issue in dispute. It is a fundamental principle of mediation which mediators shall respect and encourage.
- Mediators shall provide information about their role in the mediation before mediation commences, including the fact that authority for decision-making rests with the parties and not the mediators.
- Mediators shall not provide legal advice to the parties.
- Mediators have the responsibility to advise unrepresented parties to obtain independent legal advice where appropriate. Mediators also have the responsibility to advise parties of the need to consult other professionals to help parties make informed decisions.
- Mediators shall serve only in those matters in which they can remain impartial.
- Mediators have a duty to remain impartial throughout the course of the mediation process.
- If mediators become aware of their lack of impartiality, they shall immediately disclose to the parties that they can no longer remain impartial and shall withdraw from the mediation.
V. Conflict of interest
- Mediators have a responsibility to disclose to the parties in dispute of any conflict of interest reasonably known to the mediator, as soon as possible.
- Mediators who have disclosed a conflict of interest to the parties shall withdraw as mediator, unless the parties consent to retain the mediator.
- Mediators, their associates or partners shall not establish a professional relationship with any of the parties in a matter related to the mediation which could give rise to a conflict of interest, without the consent of all parties.
- Mediators' commitment is to the parties and the process and they shall not allow pressure or influence from third parties (persons, service providers, mediation facilities, organizations, or agencies) to compromise the independence of the mediator.
- Mediators shall inform the parties of the confidential nature of mediation.
- Mediators shall not disclose to anyone who is not a party to the mediation any information or documents that are exchanged for or during the mediation process except:
- with the mediating parties' written consent
- when ordered to do so by a court or otherwise required to do so by law
- when the information/documentation discloses an actual or potential threat to human life
- any report or summary that is required to be prepared by mediators
- when the information/documentation is non-identifiable, (unless all of the parties otherwise authorize identification), and is used for research, statistical, accreditation, or educational purposes and is limited only to what is required to achieve these purposes
- If mediators hold private sessions (breakout meetings, caucuses) with a party, they shall discuss the nature of such sessions with all parties prior to commencing such sessions. In particular, mediators shall inform parties of any limits to confidentiality applicable to information disclosed during private sessions.
- Mediators shall maintain confidentiality in the storage and disposal of mediation notes records and files.
VII. Quality of the process
- Mediators shall make reasonable efforts to ensure the parties understand the mediation process before mediation commences.
- Mediators have a duty to ensure that they conduct a process which provides parties with the opportunity to participate in the mediation and which encourages respect among the parties.
- Mediators shall inform parties to a dispute that mediation is most effective when the parties with full authority to settle are in attendance and when they are willing to consider options for settlement.
- Mediators who are lawyers shall not represent any parties to the mediation.
- Mediators have an obligation to acquire and maintain professional skills and abilities required to uphold the quality of the mediation process.
In advertising or offering services to clients or potential clients:
- Mediators shall refrain from guaranteeing settlement or promising specific results.
- Mediators shall provide accurate information about their education, background, mediation training and experience in any representation, biographical or promotional material and in any oral explanation of the same.
This section has been deleted for the purposes of the MMP and replaced by the fee regulations under the Administration of Justice Act and the section above entitled “Additional requirements under the Mandatory Mediation Program”.
X. Agreement to mediate
Mediators shall ensure before the mediation commences that the parties understand the terms of mediation whether or not they are contained in a written agreement/contract to mediate.
These terms shall include but not be limited to the following:
- confidentiality of communications and documents
- the right of the mediator and parties to terminate or suspend mediation
- fees, expenses, retainer, method of payment and what, if any, fee there is for cancellation, lateness or delay
- the fact that the mediator is not compellable as a witness in court proceedings by any parties to the mediation
XI. Termination or suspension of mediation
- Mediators shall withdraw from mediation for the reasons referred to in paragraphs IV.3 and V.2.
- Mediators may suspend or terminate mediation if requested by one or more of the parties.
- Mediators may suspend mediation if in their opinion:
- the process is likely to prejudice one or more of the parties
- one or more of the parties is using the process inappropriately
- one or more of the parties is delaying the process to the detriment of another party or parties
- the mediation process is detrimental to one or more of the parties or the mediator
- it appears that a party is not acting in good faith
- there are other reasons that are or appear to be counterproductive to the process
- Mediators shall terminate mediation if the conditions referred to in XI.3(a)-(f) are not rectified.
XII. Other conduct obligations
Nothing in this Model Code of Conduct replaces, supersedes or alienates ethical standards and codes which may be imposed or additionally imposed upon any mediator by virtue of the mediator's professional calling.