ABA Section of Dispute Resolution
Committee on Mediator Ethical Guidance
Inquiry:
The mediation, in which both parties are pro se, proceeds up to a point, when both parties
ask the mediator to leave the room. The mediator exits the room and checks back
repeatedly to see if he's needed (which he is not). The parties settle the case and invite the
mediator back into the mix, asking him to put into writing the terms of agreement they
have reached. The mediator is concerned about whether he had sufficiently overseen the
parties' interaction to be comfortable that there was not coercion, bad faith, etc. involved in
reaching a final settlement. Under the Model Standards, what should the mediator do?
Authority Referenced: Model Standards of Conduct for Mediators Standard I and VI (2005).
Summary:
A mediation is a process in which an impartial third party facilitates communication
and negotiation and promotes decision making by the parties to the dispute. Assuming the
described process could be a mediation, the parties’ exclusion of the mediator from some of their
negotiations, highlights the tension between the parties’ right to self-determination as to process
and outcome (Standard I) and the mediator’s obligation to conduct a quality process (Standard
VI). The mediator should assess whether the parties’ decision to exclude him was voluntary and
informed, should continue to offer services as mediator and should discuss with the parties how
the agreement, reached out of his/her presence, was reached. However, while the mediator could
discuss the parties’ agreement with them after their separate negotiation, she/he should decline
their requests to act as anything more than a scrivener because, in doing so, the mediator risks
assuming a different role, that of an attorney (Standard VI). Instead, the mediator should
recommend that the parties consult independent counsel to draft the agreement.
Opinion:
This Opinion first examines whether the described process is a mediation. Then, it considers
how the mediator must balance, on the one hand, respect for the parties’ self-determination as to
process and, on the other hand, the obligation to maintain a quality process. Finally, the Opinion
addresses whether the parties’ request that the mediator put the settlement in writing is consistent
with the Standards.
Mediation.
The threshold question is whether the described process was a mediation. A process does not
become a “mediation” simply because it is labeled as such.1
The Preamble to the Model
Standards defines mediation as follows:
Mediation is a process in which an impartial third party facilitates communication and
negotiation and promotes voluntary decision making by the parties to the dispute.
Here, the mediator met with the parties, neither of whom was represented by counsel, and
presumably facilitated communication and negotiation until the parties chose to continue
negotiation on their own for a while. Whether this meets the definition of a mediation should
depend on the quantity and quality of the mediator’s interactions with the participants.
From a quantitative standpoint, there must be substantial interaction between the mediator and
the parties. For example, the Preamble’s definition would not be satisfied if the mediator had
convened the process and conducted a cursory discussion of the dispute for 20 minutes, after
which the parties asked the mediator to leave and then engaged in unassisted negotiations for the
next two hours.
For a mediation to occur, the mediator need not be present with all of the parties during every
moment of the process. It is hardly unusual for mediation participants, from time to time, to
consult and negotiate with each other out of the presence of the mediator.2
This is certainly true
in mediations where the parties are represented by counsel and there seems no definitional reason
to treat a process involving pro se disputants differently.
From a qualitative standpoint, the definition addresses the mediator’s active facilitation of both
communication and negotiation between the parties, and the mediator’s active promotion of
voluntary decision making by the parties. In the present inquiry, it is not clear how actively the
mediator had fostered an exchange of information and settlement options. Nor is it evident to
what extent the mediator had actively promoted the parties’ voluntary decision making. The
mediator did “check back repeatedly to see if he’s needed” and the parties, although negotiating
on their own, did not express their intention to end the mediation.3
For purposes of this opinion,
the Committee will assume that the described process could have satisfied the Preamble’s
definition.
Self-determination and quality of process.
A central tenet of mediation is self-determination, which relates both to outcome and to process.
Model Standard I prescribes that:
A. A mediator shall conduct a mediation based on the principle of party selfdetermination.
Self-determination is the act of coming to a voluntary, uncoerced
decision in which each party makes free and informed choices as to process and
outcome. Parties may exercise self-determination at any stage of a mediation, including mediator selection, process design, participation in or withdrawal from the
process, and outcomes.
