Mediators
Accreditation
Is there a professional body for mediators, and is it necessary to be accredited to describe oneself as a ‘mediator’? What are the key requirements to gain accreditation? Is continuing professional development compulsory, and what requirements are laid down?
There are several professional bodies for mediators in the United States. These groups include the American Arbitration Association, the Federal Mediation and Conciliation Service, the Nation Mediation Board, the Civil Mediation Council, the Chartered Institute of Arbitrators, the US Institute of Peace, the United Nations Department of Political Affairs and the Judicial Arbitration and Mediation Services. States have created their own recommendations and qualifications for candidates pursuing a career in mediation. Additionally, a mediator can practise in private settings in any state without being licensed, certified or listed. Mediator certification can also be obtained online through programmes such as the National Association of Certified Mediators. Consequently, a person may pursue a career in mediation with a high school diploma and through successfully completing a mediation course.
There are also court-appointed mediators who must achieve a higher standard to pursue a career in mediation. Some states require mediator candidates to receive a JD from an accredited law school and pass their state’s bar exam. Others accept mediators with degrees in their specialisation, such as a master’s degree in social work for mediators pursuing a career in family mediation. Some states accept relevant work experience to serve as a substitute to degree requirements.
Various states require court-appointed mediators to participate in continuing professional development. For example, court-appointed mediators in Idaho are required to complete five hours of continuing mediation training every three years; Maryland requires mediators to complete four hours of continuing mediation education per year; Minnesota requires mediators to complete 18 hours of continuing mediation education every three years; Mississippi requires mediators to complete six hours of meditation-related training every two years; and New Jersey requires its mediators to complete four hours of continuing mediation training every year.
States also have implemented court rules or case law creating immunity for mediators. This immunity insulates mediators from most civil liability for wrongdoing during a mediation proceeding. For example, the Southern District of Indiana Alternative Dispute Resolution Rule 1.3 provides: 'To the extent permitted under applicable law, each Mediator shall have immunity in the performance of his or her duties under these Rules, in the same manner, and to the same extent, as would a duly appointed Judge.' Additionally, several state mediation statutes and court rules have allowed for mediator privileges. The range of the privilege varies based on jurisdiction.
Liability
What immunities or potential liabilities does a mediator have? Is professional liability insurance available or required?
There is no governing or regulatory body for mediation nor is there a uniform regulatory scheme in the United States governing the practice of mediation. Mediators are not state-licensed and there is no one formal certification process, although mediators may be trained and certified by any number of educational or court-annexed bodies, and there is no legal restriction on using the title ‘mediator’ as there is protecting the title of doctor and lawyer. There are, however, standards of conduct for mediators promulgated by the American Bar Association, the American Arbitration Association and the Society of Professionals in Dispute Resolution (see https://www.americanbar.org/content/dam/aba/migrated/2011_build/dispute_resolution/model_standards_conduct_april2007.authcheckdam.pdf). These standards include avoiding the appearance of conflicts of interest. The federal government has developed a Code of Professional Conduct for Labor Mediators (https://www.govinfo.gov/content/pkg/CFR-1998-title29-vol4/pdf/CFR-1998-title29-vol4-part1400-app-id107.pdf) for mediators employed by the Federal Mediation and Conciliation Service (FMCS). The FMCS is a federal agency that provides mediation services primarily in the area of collective bargaining.
Independent claims or causes of action against mediators for malfeasance is rare. Mediators do not need to maintain a professional liability insurance policy. Many mediation institutions include a waiver of liability clause for the organisation and its mediators in their contract with the parties. The conduct of a mediator is not under the same scrutiny as the conduct of an arbitrator, because the mediator may not make any binding decisions, unlike an arbitrator.
Mediation agreements
Is it required, or customary, for a written mediation agreement to be entered into by the parties and the mediator? What would be the main terms?
A written agreement is not required for parties to enter mediation. However, it is wise to secure it in writing. A mediation agreement can be any document that evidences the intent on both sides to enter into mediation and to make a good faith effort to reach a settlement. A standardised mediation agreement form may not always be effective because different circumstances call for different expectations.
Appointment
How are mediators appointed?
When mediation is deemed appropriate and parties agree to mediate, courts will refer the parties to an approved mediator. Courts often provide the parties with a roster of mediators who meet basic standards and requirements. The parties then choose a mediator they deem is best fit to mediate their matter (https://legalstudiesms.com/learning/court-certified-mediator-qualification-requirements/).
Conflicts of interest
Must mediators disclose possible conflicts of interest? What would be considered a conflict of interest? What are the consequences of failure to disclose a conflict?
Mediators are often required to abide by the Model Standards of Conduct for Mediators (the Standards). The Standards require mediators to decline a mediation opportunity if they cannot conduct it in an impartial manner. Mediators are also obligated to disclose both actual and potential conflicts of interest that are reasonably known to the mediator and could raise a question about the mediator’s impartiality. Some conflicts of interests include when a mediator is asked to mediate a dispute between parties, where they have an interest in or an influential relationship with one of the parties participating in the mediation, or if the mediator was previously an agent or representative of one of the parties. Mediators are required to disclose all circumstances likely to create a presumption of bias. Upon receipt of such disclosures, the parties may choose to waive such conflicts and proceed with the mediation. If a party disagrees as to whether the mediator shall serve or if the mediator’s conflicts of interest might reasonably be viewed as undermining the integrity of the mediation, the mediator shall be replaced. Failure to disclose conflicts of interests may result in sanctions and penalties (https://adr.org/sites/default/files/Commercial%20Rules.pdf).
Fees
Are mediators’ fees regulated, or are they negotiable? What is the usual range of fees?
Mediation is usually charged by the hour. The cost of mediation fluctuates around the country, but the rates are minute in comparison to the costs associated with litigation. Rates typically reflect mediator’s background, training, education and experience. Some mediators decrease their rates as they book more hours, while others choose to charge a flat fee. Private mediators also offer sliding-scale services, the method of fee charging used by most court-appointed mediators. Under the sliding-scale method the fees are based on client income.
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