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July 02, 2019 Feature

Behind the Curtain: Ethics for Mediators

By ABA Section of Dispute Resolution Ethics Subcommittee

Although the mediation process is familiar to most lawyers, the details of mediation practice, as well as the ethical obligations of mediators, still appear to be shrouded in mystery. Because mediation is not the practice of law and remains largely unregulated, confusion about mediation among lawyers and lay persons is justified. This article provides sources of mediation regulation and the central tenets of mediator ethics.

Regulating Mediators – Largely Uncharted Territory

No state regulates the entire field of mediation within its jurisdiction, although some states regulate certain mediators – such as family law mediators or court mediators. The most robust public regulation of mediators is within state court systems. States such as Florida, Georgia, Maine, Maryland, Minnesota, North Carolina, and Virginia have comprehensive programs for court-connected or court-annexed mediation.1 These programs often include mediator education and adherence to a code of mediation ethics.2 In addition, some courts impose requirements for mediators to serve on “approved lists” used as a referral source. As of 2013, approximately 28 states enacted standards for mediators to be recognized by state courts, with more states requiring additional training and experience for family mediators.3

In the private sector, mediators who wish to be on an approved list of mediators, such as the rosters maintained by the American Arbitration Association (“AAA”), JAMS, or the Financial Industry Regulation Authority (“FINRA”), have to submit to the provider organization’s qualifications and codes of ethics. Mediators might need to have a certain number of years of experience or training before inclusion on a panel. For instance, mediators applying to serve on an AAA panel must show: 1) a minimum of 10 years of business, industry, or legal experience, 2) appropriate professional education, and 3) training and mediator experience.4 Once accepted to a panel, the mediator is required to abide by the codes of ethics adopted by the organization.

Given the patchwork of regulation for mediators, attorneys who are concerned about ethical practice may want to employ a mediator who is approved by a provider organization or a court. Those mediators have at least attested to following known ethical standards.

Standards of Conduct for Mediators

Although mediators may or may not be bound to a particular code of ethics, mediators largely agree on what the ethical standards for the profession should include. The most influential code of ethics for mediators is the 2005 Model Standards of Conduct for Mediators, jointly approved by the AAA, the American Bar Association, and the Association for Conflict Resolution (“ACR”).5 The most important tenets of mediator ethics include impartiality, confidentiality, and maintaining a process to ensure party decision-making.


Although the mediator will not be making any substantive decisions for the parties during the mediation process, the mediator is expected to be impartial and free from conflicts of interest.6 Although mediator impartiality is not the norm worldwide, the expectation of impartiality is predominant in the United States. The reasons for impartiality are intuitive. If a mediator is impartial, then the mediator will not be acting in favor of one party’s interests. Mediators have significant control over the process – which can potentially influence the substance of the mediation. Mediators without an interest in the outcome will theoretically treat both parties with equal dignity and respect and without trying to influence any ultimate decisions.

Mediators, of course, are still human, and may still have biases and connections with one or more of the parties. In most instances, mediators must disclose any potential conflicts of interest with the parties, their counsel, or other mediation participants.7 For example, if a mediator formerly served on the board of directors of one of the corporate parties, the mediator must disclose the conflict and allow the parties to decide whether the mediator can still serve on the case. If a mediator does not make initial disclosures as a matter of course, the hiring attorneys can always ask questions about the mediator’s background and experience. A mediator should withdraw from a case if she does not believe she can serve impartially.


The confidentiality of mediation is often one of the process’s most attractive qualities. Confidentiality is not only a benefit of mediation but also an ethical obligation of mediators.8 This tenet means that mediators cannot relay mediation communications to others. Because confidentiality is viewed as crucial to promoting candor during mediation discussions, many mediators would rather stand in contempt of court than testify about mediation communications. Some jurisdictions, including the 13 that have adopted the Uniform Mediation Act, additionally provide mediator privilege to protect a mediator’s right not to testify in court about what has taken place in a mediation.9

Mediators hold a position of trust, and that trust is maintained through confidentiality. When participants trust the mediator, they participate more freely, and protecting a mediator against compelled testimony preserves a mediator’s neutrality.

Confidentiality also applies within a mediation. When a mediator conducts a shuttle-diplomacy style or simply meets privately with less than all of the parties, the default ethics rule is that the information is confidential from the other mediation participants.10 Participants theoretically have control over information exchanges and can use a mediator to relay specific information while keeping other information confidential from other parties.

Party Autonomy

Nearly all of the ethics rules for mediators relate back to the overarching principle of party autonomy or self-determination. Additionally, party autonomy achieves mediation’s goal of party consent to participate. The parties can and should retain control over not only the substance of any settlements (including whether or not they will settle) but also the process used to achieve resolution.11 Self-determination is the first of the Model Standards, which indicate that parties may exercise such autonomy “at any stage of a mediation, including mediator selection, process design, participation in or withdrawal from the process, and outcomes.”12 Although mediators consider themselves to be “process experts,” they can and should be willing to take process suggestions from the parties, who understand the facts and personal dynamics significantly better than the mediator. Further, the parties, not the mediator, must live with any settlement, which is further reason to support party autonomy.


In conclusion, lawyers concerned about ethical conduct by mediators should take care in hiring a mediator to determine if the mediator is bound to any particular code of ethics. Because most state and provider organizations’ ethical codes are similar, the more important question is if the mediator is subject to ethics, and not necessarily which code.


1. Art Hinshaw, Regulating Mediators, 21 Harv. Negot. L. Rev. 163, 195 (2016).

2. Id.

3. Northern Virginia Mediation Service, State-by-State Guide to Court Mediator Qualification Standards 3 (Aug. 16, 2013),

4. AAA Panel of Mediators Qualification Criteria, American Arbitration Association, (last visited Jan. 3, 2018).

5. Model Standards of Conduct for Mediators (Sept. 2005),

6. Id., Standard II & III (2005).

7. Uniform Mediation Act §9 (Mediator Disclosure of Conflicts of Interest), available at

8. Model Standards of Conduct for Mediators, supra note 5, Standard V.

9. Uniform Mediation Act, §4 (2003).

10. Model Standards of Conduct for Mediators, supra note 5, Standard V(B).

11. Model Standards of Conduct for Mediators, supra note 5, Standard I.

12. Id.

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By ABA Section of Dispute Resolution Ethics Subcommittee