Originally from Dispute Resolution Journal

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As a mediator, you need to be familiar with two types of ethical standards—those which guide mediators in performing their function and those which govern the conduct of lawyers engaged in negotiation. You need to understand the ethics of the mediator’s function so that you will know when you are exceeding your ethical bounds. You also need to understand the ethics of the lawyer’s function in negotiation so that you will know the constraints on counsel’s conduct as an advocate in mediation.

Standards of Ethical Conduct for Mediators
Mediator ethical standards are defined in relation to the mediator’s duties to the parties, to the process, to non-parties, and to other professionals. Several professional dispute resolution organizations currently publish mediator standards. Three particular organizations—the American Arbitration Association, the American Bar Association, and the Society of Professionals in Dispute Resolution have jointly published a set of ethical standards for mediators called the Model Standards of Conduct for Mediators. In the discussion that follows in this section, reference to numbered standards will reflect the tripartite Model Standards.

Duties to the Parties
Mediators are required to recognize that the mediation process is based on the principle of self-determination by the parties (Standard I). The purpose of the process is to allow the parties to reach a voluntary, uncoerced agreement. The role of the mediator is to facilitate a voluntary resolution of a dispute. A mediator can educate the parties about the mediation process and help them make informed decisions, but may not advise them on the law. And he or she must have the necessary qualifications to satisfy the reasonable expectations of the parties (Standard IV).

A mediator must conduct the mediation in an impartial manner (Standard II). A mediator may mediate only those matters in which he or she can remain impartial and evenhanded with respect to the subject matter of the dispute and the participants’ personal characteristics, background, or performance at the mediation. A mediator is further required to disclose all actual and potential conflicts of interest reasonably known to the mediator, and afterwards, decline to mediate unless all parties choose to retain the mediator (Standard III). The need to protect against actual or apparent conflicts of interest also governs the conduct of mediators both during and after the mediation.
A mediator must maintain the reasonable expectations of the parties with regard to confidentiality and may not disclose any confidential matter to the opposing party or to anyone outside the mediation unless given permission by the pertinent party or parties or unless required by law or other public policy (Standard V). The mediator’s duty of confidentiality arises from at least four types of laws: specific statutes or court rules related to mediator confidentiality or mediator privileges; rules related to evidentiary exclusion of settlement discussions; discovery limitations; and laws regarding the enforcement of agreements not to disclose.