APPENDIX A TO RULE 8.9. CODE OF MEDIATION ETHICS

Introduction

Rule 8.8 of the North Dakota Rules of Court encourages civil litigants to consider using alternative dispute resolution processes to settle disputes at an early stage of a civil case. Rule 8.9, N.D.R.Ct., provides for a roster of neutrals conducting alternative dispute resolution processes, including mediators. The North Dakota State Court Administrator oversees the neutrals roster and individuals and organizations approved for roster inclusion are subject to the jurisdiction of the Administrator and to compliance with this Code of Ethics.

The purpose of this Code of Ethics is to provide standards of ethical conduct to guide mediators who provide mediation services, to inform and protect consumers of mediation services, and to ensure the integrity of the mediation process. In order for mediation to be effective, there must be broad public confidence in the integrity of the process. Mediators have a responsibility not only to the parties and the legal system, but also to the continuing improvement of the process. They must observe high standards of ethical conduct. These provisions should be construed to advance these objectives.

Mediators should orient the parties to the process before beginning a mediation. Mediators must not practice, condone, facilitate, or promote any form of discrimination on the basis of race, color, creed, religion, national origin, sex, marital status, economic status, disability, sexual orientation, or age. Mediators must be aware that cultural differences may affect a party's values, decisions, and conduct in mediation.

This introduction serves as a general orientation to the Code of Ethics. Comments accompanying any rule explain and illustrate the meaning and purpose of the rule. They are guides to interpretation but the text of each rule is authoritative. Failure to comply with any provision in this Code may be the basis for removal from the roster of neutrals maintained by the State Court Administrator or for such other action as may be taken by the North Dakota Supreme Court or the State Bar Association of North Dakota, or other professional organizations.

Violation of a provision of the Code should not itself give rise to a cause of action nor should it create any presumption that a legal duty has been breached. Nevertheless, since the rules do establish standards of conduct for mediators, a mediator's violation of a rule may be evidence of breach of the applicable standard of conduct.

Rule I. Self-Determination

A mediator shall recognize that mediation is based on the principle of self-determination by the participants. It requires that the mediation process rely upon the ability of the participants to reach a voluntary, informed, uncoerced agreement. A mediator shall inform the participants that they may seek information and advice from a variety of sources during the mediation process. The primary responsibility for the resolution of a dispute and the shaping of an agreement rests with the parties. A mediator may not require a participant to stay in the mediation against the participant's will. A mediator shall inform the participants that they may withdraw from mediation at any time, and are not required to reach an agreement in mediation.

Comments

(1) The mediator may provide information about the process, raise issues, offer opinions about the strengths and weaknesses of the case, draft proposals, and help parties explore options. Parties should be given the opportunity to discuss issues important to them and consider all proposed options. It is acceptable for the mediator to suggest options in response to the parties' requests, but not to coerce the parties to accept any particular option.

(2) The mediator's commitment must be to the participants and the process. Pressure from outside of the mediation process must never influence the mediator to coerce participants to settle.

(3) A mediator cannot personally ensure that each party has made a fully informed choice to reach a particular agreement, but it is a good practice for the mediator to make parties aware of the importance of consulting other professionals, where appropriate, to help them make informed decisions.

(4) A mediator should be alert to the capacity and willingness of the participants to mediate before proceeding with the mediation and throughout the process. A mediator should not conduct mediation if a mediator reasonably believes that a participant is unable or unwilling to participate due to lack of safety, capacity, or if the any party is experiencing undue influence.

Rule II. Impartiality

A mediator shall conduct the mediation process in an impartial manner and shall serve only in those matters in which the mediator can remain impartial and evenhanded. Impartiality means freedom from favoritism or bias in word, action or appearance, and includes a commitment to assist all participants as opposed to any one individual or perspective. If at any time the mediator is unable to conduct the process in an impartial manner, the mediator shall withdraw.

Comments

(1) A mediator should guard against bias, prejudice or partiality based on the participants' personal characteristics, background, or performance at the mediation.

(2) A mediator shall withdraw if the mediator believes that the mediator's impartiality has been compromised.

Rule III. Conflicts of Interest

A mediator shall disclose all actual and potential grounds of bias and conflicts of interest reasonably known to the mediator. The participants shall be free to retain the mediator by an informed, written waiver of the conflict of interest. However, if a bias or conflict of interest clearly impairs a mediator's impartiality, the mediator shall withdraw regardless of the express agreement of the participants. The need to protect against conflicts of interest must govern conduct that occurs during and after the mediation process. Without the consent of all participants, and for a reasonable time under the particular circumstances, a mediator who also practices in another profession may not establish a professional relationship in that other profession with one of the participants in a substantially factually related matter.

Comments

(1) A conflict of interest is any direct or indirect financial or personal interest in the outcome of the proceeding or any existing or past financial, business, professional, family, or social relationship which is likely to affect impartiality or might reasonably create an appearance of partiality or bias. If all parties agree to proceed after being informed of conflicts, the mediator may proceed with the case. If, however, the mediator believes the conflict of interest would inhibit the mediator's impartiality, the mediator should decline to proceed.

(2) A mediator should identify and disclose potential grounds of bias or conflict of interest upon which a mediator's impartiality might reasonably be questioned. Such disclosure should be made prior to the start of mediation and allow time for participants to select an alternate mediator. A mediator should resolve all doubts in favor of disclosure. All disclosures should be made as soon as practical after the mediator becomes aware of the bias or potential conflict of interest. The duty to disclose is a continuing duty.

(3) In deciding whether to establish a relationship with one of the participants in an unrelated matter, the mediator should exercise caution in circumstances that would raise legitimate questions about the integrity of the mediation process.

(4) A mediator should avoid conflicts of interest in recommending the services of other professionals to the participants.

(5) A mediator should withdraw if the mediator believes a conflict of interest has been identified and has not been waived by the participants.

(6) A mediator who is also a lawyer must bear in mind that North Dakota Rules of Professional Conduct, including Rules 1.7 and 1.12, will also apply to aspects of the lawyer's practice as a mediator.

Rule IV. Confidentiality

Any communication, verbal or written, in a mediation process is confidential and inadmissible as evidence in any proceeding unless disclosure is required by law. Any statement made by a party or counsel during mediation is considered confidential and will not be disclosed to any other person unless explicit permission for disclosure has been given. The mediator shall disclose a participant's threat of suicide or violence against any person to the threatened person and the appropriate authorities if the mediator believes such threat is likely to be acted upon.

Additionally, it will not be considered a violation of confidentiality for the mediator to disclose notes, records, or recollections of the mediation process to the extent that the mediator reasonably believes necessary:

(a) to defend against a complaint filed against the mediator for misconduct as part of the grievance process; 

(b) to secure legal advice about the mediator's compliance with these rules.

Comments

(1) A mediator shall discuss issues of confidentiality with the participants before beginning the mediation process, including limitations on the scope of confidentiality, and the extent of confidentiality provided in any private sessions that a mediator holds with a party. Prior to undertaking the mediation, the mediator should inform the participants of the limitations of confidentiality such as statutory, judicially, or ethically mandated reporting. The scope of confidentiality should be discussed with the parties and include their expectations of confidentiality of each other. The written agreement to mediate should include provisions concerning confidentiality.

(2) If a mediator believes disclosure of suicide or violence is required, a mediator should use appropriate safeguards in doing so in order to protect all involved. Additionally, if a mediator has reasonable grounds to believe that a child of the participants or a vulnerable adult is abused or neglected within the meeting of North Dakota abuse and neglect laws, the mediator shall comply with applicable protection and reporting laws.

(3) A mediator may not be a witness and the notes and work product of a mediator are not subject to discovery or subpoena in related legal proceedings. If subpoenaed or otherwise noticed to testify or produce documents, the mediator should inform the participants immediately, and should not testify or provide documents in response to a subpoena without an order of the court.

Rule V. Qualifications & Competence

A mediator must be qualified by education, training and experience to undertake the mediation. Mediators must provide information regarding their relevant training, education and experience to the participants.

Comments

(1) Any person who offers mediation services gives the parties and the public the expectations that the person is competent to serve effectively as a mediator. A mediator should decline appointment, request technical assistance, or withdraw from any case that is beyond the mediator's competence.

(2) Mediators should continuously improve their professional skills and abilities by, among other activities, participating in relevant continuing education programs, and should regularly engage in self-assessment.

(3) Mediators should participate in programs of peer consultation and help mentor the work of less experienced mediators.

(4) Mediators should continuously strive to understand the impact of culture and diversity on the mediator's practice.

Rule VI. Quality of the Process

A mediator shall work to ensure a quality process. A quality process requires a commitment by the mediator to diligence, timeliness, and responsiveness to the parties and the process. A mediator may not knowingly make false statements of fact or law.

Comments

(1) A mediator shall be prepared to commit the attention essential to the mediation process. A mediator should satisfy the reasonable expectations of the parties concerning the timing of the process.

(2) A mediator should refrain from the unauthorized practice of therapy or law, and from representing any party as an advocate while acting as a mediator. A mediator has a duty to protect the integrity of the mediation process despite external pressure from the legal system, agencies, parties, or non-parties.

(3) A mediator should withdraw from mediation or postpone a session if the process is being used to further illegal conduct or to gain unfair advantage, or if a party is unable to participate due to drug or alcohol abuse, threats of violence impacting safety of the participants, or other physical or mental incapacity.

(4) If a mediator does suspend or terminate mediation, the mediator should take reasonable steps to minimize prejudice or inconvenience to the participants which may result.

Rule VII. Advertising and Solicitation

A mediator shall be truthful in advertising and solicitation for mediation. A mediator shall make only accurate and truthful statements about any mediation process, its cost and benefits, the mediator's role and qualifications. A mediator shall refrain from promising specific results.

In an advertisement or other communication to the public, a mediator who is on the Rule 8.9 Roster of Alternative Dispute Resolution Neutrals may use the phrase "qualified under Rule 8.9(b) of the North Dakota Rules of Court". It is not appropriate to identify oneself as a "certified" mediator under North Dakota Rules of Court.

Rule VIII. Fees

A mediator shall fully disclose and explain the basis of compensation, fees and charges to the participants. The participants must be provided sufficient information about fees at the outset to determine if they wish to retain the services of the mediator. A mediator may not enter into a fee agreement that is contingent upon the outcome of the mediation process. A mediator may not give or receive any commission, rebate, or similar remuneration for referring a person for mediation services.

Comments

(1) The better practice in reaching an understanding about fees is to set down the arrangements in a written agreement.

(2) A mediator who withdraws from a case should return any unearned fees to the parties.

(3) A mediator may take reasonable steps under the law to enforce the fee agreement with the parties at the conclusion of the mediator/client relationship.