Code of Ethics
Code of Professional Conduct
Approved June 3, 1986
Revised June 5, 1987
Table of Contents
- Foreward
- Definition of Terms
- Competence
- Duty of Confidentiality
- Impartiality
- Agreement to Mediate
- Potential Problems in Mediation
- Information, Disclosure and Advice
- Independent Legal Advice
- Duty to Minimize Harm or Prejudice to Participants
- Public Communications
- Duty to Encourage Reporting of Breaches of Code
Foreward
The following rules are intended to govern the relations of family mediators with their clients, their professional colleagues, and the General Information so that all will benefit from high standards of practice in family mediation. The rules are to be observed in spirit as well as in practice.
Definition of Terms
For the purposes of this Code, family mediation is defined as a non-adversarial process in which a qualified and impartial third party (the mediator) helps family members resolve their disputes. The resolution is voluntary and is based on sufficient information and advice for each participant.
In open mediation, if the parties fail to agree voluntarily on one or more issues, the mediator shall prepare a report on the mediation and make recommendations. In open mediation, such a report may he used in subsequent court proceedings.
In closed mediation, there is no such report or recommendations and the process is entirely confidential.
Competence
It is the obligation of anyone acting as a family mediator to ensure that he or she is fully qualified to deal with the specific issues involved.
It is acknowledged that family mediators will have a diversity of education and training, but the obligation to refrain form rendering services outside the limits of the family mediator's qualifications and capabilities remains.
Family mediators shall co-operate with and endeavor to involve other competent professionals where the situation requires it.
Family mediators shall engage in continuing education to ensure that their mediation skills are current and effective.
Family mediators shall perform their service in a conscientious, diligent, and efficient manner in accordance with this Code of Conduct.
Duty of Confidentiality
The mediator shall not voluntarily disclose to anyone not a party to the mediation any obtained through the mediation process except:
non-identifying information for research or education purposes; or
with the written consent of the parties to the mediation contract; or
where ordered to do so by an appropriate judicial authority or required to do so by law; or
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where the information discloses an actual or potential threat to human life or safety or a proposed breach of the Criminal Code of Canada.
If the mediation is open, communications made in the course of the mediation and the and recommendations may be disclosed to a third party only for the purposes of resolving by litigation or otherwise.
While closed mediation imposes the intention and the duty of confidentiality on the mediator, it cannot confer privilege, and the mediator should advise the parties that the intended confidentiality cannot be guaranteed.
Impartiality
The mediator has a duty to be impartial in relation to the participants. Impartiality requires that the mediator shall not have preconceived opinions in favour of or against one person or the other.
The mediator shall disclose to the participants any biases he or she may have relating to the issues to be mediated.
The mediator will refrain from mediating in cases where the mediator knows there has been any significant prior involvement by the mediator or any partner or associate of the mediator in private practice, with one of the participants except after full disclosure of the involvement to, and express consent by, the other participant(s). The role of the mediator should be distinguished from the earlier relationship.
lawyer-mediator, or any partner or associate of such lawyer-mediator, should decline to represent either or both spouses in any subsequent legal matter related to the issues mediated. Rather, the mediator should keep him or herself available as a neutral to assist the parties in future in the event that any modifications are required to the mediated settlement.
The perception of partiality on the part of the mediator by one or both participants does not in itself require the mediator to withdraw. In these circumstances, it is only the duty of the mediator to advise the participants of their right to terrninate the mediation.
Agreement to Mediate
The mediator has a duty to explain the mediation process clearly to the participants before reaching an agreement to mediate. In particular, the mediator shall do the following:
define mediation, distinguishing it from other methods of dispute resolution and from therapy and marriage counselling;
determine the appropriateness of mediation for the participants in light of their particular circumstances;
discuss the differences between closed mediation, open mediation and assessment, and the implications of each, and require the parties to choose open or closed mediation;
advise participants that either of them or the mediator has the right to suspend or terminate the process at any time;
explain the cost of mediation and reach an agreement with the participants regarding payment. It is inappropriate for the mediator to charge a contingency fee or base the fee on the outcome of the mediation process.
advise the participants of the role of independent legal advice in accordance with paragraph eight of this Code. In the event the mediator is a lawyer, the lawyer-mediator shall inform the participants that he or she cannot represent either or both of them in any subsequent legal matter related to the issues mediated.
discuss with the participants the mediator's specific procedures and practices;
recommend that the agreement to mediate be written and signed by the parties and the mediator.
Potential Problems in Mediation
It is the duty of the mediator to advise the participants of potential problems that may arise during mediation. Some of these problems include:
the possibility that one or both spouses may use the time during the mediation to dissipate or conceal assets;
the fact that a status quo may be developing with respect to the custody of the children so that the non-custodial parent may be prejudiced in any future custody claim in the courts, notwithstanding any agreement to the contrary;
the fact that information disclosed during mediation may be used against a participant in the event of subsequent legal proceedings.
Even if the information disclosed directly in mediation is confidential, it may open up lines of inquiry and/or reveal other information which might not otherwise have come to light in any subsequent litigation.
A judicial authority may require disclosure of information revealed during mediation.
Information, Disclosure and Advice
It is the duty of a mediator to actively encourage the participants to make decisions based upon sufficient information, knowledge and advice.
Every family mediator has an ongoing obligation to advise participants of the desirability and availability of independent legal advice. while neutral legal information may be made available to the parties, each should be encouraged to obtain legal advice.
where financial or property issues are involved, the mediator shall obtain an undertaking from the parties to make frank and full disclosure of their financial and related circumstances at the appropriate time in the mediation process. The mediator will assist the parties and their advisors to achieve such disclosure. A mediator has an ongoing obligation to advise both parties to obtain legal and other professional advice and assistance in this respect.
Independent Legal Advice
It is the obligation of every family mediator to advise clients:
of the availability of independent legal advice for each spouse;
of the advisability of obtaining it from the outset of the mediation;
to obtain independent legal advice prior to signing the mediated agreement.
Duty to Minimize Harm or Prejudice to Participants
It is the obligation of the mediator to suspend or terminate mediation whenever continuation of the process would harm or prejudice one or more of the participants.
The mediator shall suspend or terminate mediation where the ability or the willingness of either of the participants to effectively participate in the process is lacking.
The mediator shall suspend or terminate mediation when its usefulness is exhausted so that there is no unnecessary expense to the participants from unproductive mediation.
If the mediator has suspended or terminated the process, he or she may suggest that the participants obtain appropriate professional services.
when the mediator believes the agreement being reached is unreasonable, he or she shall so advise the participants.
Notwithstanding impartiality, the mediator has the duty to promote the best interests of the children and to assist the parents to examine the separate and individual needs of each child.
while the mediator has an obligation to minimize the harm or prejudice to participants in the process, it is a fundamental principle of mediation that competent and informed participants can reach an agreement which may not correspond to legal guidelines contained in the relevant statutes or case law or that does not correspond to general community expectations and standards.
The mediator shall see that the participants are reaching agreement freely, voluntarily and without undue influence.
Public Communications
The purpose of public statements concerning family mediation should be:
to educate the public generally about the process; and
to present the process of mediation objectively as one of several methods of dispute resolution in order to help the public make informed judgments and choices.
When advertising professional services, mediators should restrict themselves to matters which educate and inform the public. These could include the following to describe the mediator and the services offered: name, address, telephone number, office hours of the particular mediation service, highest relevant academic degree, relevant training and experience in mediation, appropriate professional affiliations and membership status, and any additional relevant or important consumer information.
Public Communications should not imply that membership in the Ontario Association for Family Mediation constitutes Certification as a mediator.
Duty to Encourage Reporting of Breaches of Code
It is the obligation of family mediators to encourage clients to report in writing real or apparent breaches of this Code forthwith to the Chairman of the Standards and Ethics Committee and/or to the President of the Ontario Association for Family Mediation.