Preliminary Conference or Intake
In the preliminary conference or intake the mediator must ensure that participants are provided with a description of mediation and the steps involved including the use of joint Sessions, and separate sessions and other related matters.
The preliminary conference or intake includes;
- Assessing whether mediation is suitable and whether variations are required, establishing individual, institutional, procedural and substantive credibility of the mediator to the disputants
- Explaining to participants the nature and content of any agreement or requirement to enter into mediation including confidentiality, costs and how they are to be paid.
- Identifying who is participating in the mediation and to what extent participants have authority to make decisions.
- Assisting participants to prepare for the mediation meeting including consideration of any advice or information that may need to be sought and/or exchanged.
- Referring participants, where appropriate, to other sources of information, advice or support that may assist them.
- Informing participants about their roles and those of advisors, support persons, interpreters and any other attendees.
- Advising participants about how they or the mediator can suspend or terminate the mediation.
The Mediation Meeting
The mediation meeting will ordinarily include a joint session of the participants in which the participants communicate directly with each other to identify, clarify and explore interests, issues and underlying needs. The mediation meeting may also include separate sessions.
A Professional mediator may adjourn the mediation meeting and conduct the mediation over multiple meetings and in different locations. The mediation meeting may conclude whether or not the participants have reached an agreement.
Suspending or Terminating Mediation
A professional mediator may suspend or terminate the mediation if they form the view that mediation is no longer suitable or productive, for example;
- A participant is unable or unwilling to participate or continue in the mediation
- A participant is misusing the mediation
- A participant is not engaging in the mediation in good faith
- The safety of one or more participants may be at risk
A professional mediator should, where possible, advice of their intention to suspend or terminate the mediation.
If terminating the mediation, the mediator where appropriate, should encourage the Participants to consider alternative procedures for achieving resolution.
Power and Safety
A professional mediator must be alert to changing balances of power in mediation and manage the mediation accordingly using the behavioral reflection tools that he/she has already been trained in. A professional mediator must consider the safety and comfort of participants and where necessary take steps, which may include:
- Agreeing on guidelines to encourage appropriate conduct
- Activating appropriate security protocols
- Using separate sessions, communication technology or other protective Arrangements
- Having a participant’s friend, representative or professional advisor attend Mediation meetings
- Providing participants with information about other services or resources
- Suspending or terminating the mediation with appropriate steps to protect the Safety of participants.
Procedural Fairness and Impartiality
A Professional mediator must conduct the mediation in a fair, equitable and impartial way, without favoritism or bias in act or omission.
A professional mediator must identify and disclose any potential grounds of bias or conflict of interest before the mediation, or that emerge at any time during the process.
A professional mediator must not mediate in cases involving a conflict of interest without the informed consent of the participants, and then only if, in the mediator’s view, the conflict would not impair his or her impartial conduct of the process.
A professional mediator must support participants to reach agreements freely, voluntarily, without undue influence and on the basis of informed consent.
A professional mediator must provide participants appropriate opportunities to speak to and be heard by one another in the mediation, and to articulate their respective interests, issues and underlying needs.
A professional mediator must ensure, so far as practicable, that participants have had sufficient time and opportunity to access sources of advice or information necessary for their decision-making.
A professional mediator must encourage and support negotiations that focus on the participants’ respective interests, issues and underlying needs and must encourage participants to assess any proposed agreements accordingly and with reference to their long -term viability.
Ethical Conduct & Professional Relations
A Professional mediator must mediate only where they have the competence to do so.
A Professional mediator must not use information obtained in mediation for personal gain or advantage.
A Professional mediator trained by M Tl must adhere to the ethical code or standards prescribed by the MTI International East Africa
A Professional mediator should encourage participants to consider the interests of any vulnerable stakeholders
A Professional mediator should encourage participants to obtain other professional support when appropriate but should refrain from recommending the services of particular Individuals or firms.
A Professional mediator may liaise with other relevant professionals with permission from the relevant participant.
A Professional mediator should extend professional courtesy to other professionals engaged by the participants.
A Professional mediator should, where possible, engage in professional debriefing, peer Consultation and mentoring of less experienced mediators.
Confidentiality
A professional mediator must respect the agreed confidentiality arrangements relating to participants and to information provided during the mediation, except:
- With the consent of the participant to whom the confidentiality is owed; or
- Where non-identifying information is required for legitimate research, supervisory or educational purposes; or
- When required to do otherwise by law;
- Where permitted to do otherwise by ethical guidelines or obligations;
- Where reasonably considered necessary to do otherwise to prevent an actual or potential threat to human life or safety.
Before holding separate sessions with different participants, a professional mediator must inform participants of the confidentiality which applies to these sessions. With a participant’s consent, a mediator may discuss the mediation, or any proposed agreement , with that participant’s advisors or with third parties.
A professional mediator is not required to retain documents relating to mediation, although they may do so should they wish, particularly where duty of-care or duty -to-warn issues are identified.
A professional mediator must take care to preserve confidentiality in the storage and disposal of written and electronic notes and records of the mediation and must take reasonable steps to ensure that administrative staff preserve such confidentiality.
