Code of Conduct for the Mediator.

Code of conduct for the MfN registered mediator

These rules of conduct serve as a guideline for the behavior of the MfN registered mediator. They also provide information for those involved and serve as a benchmark for the disciplinary judge when assessing the actions of the mediator.

1. Professional ethics and integrity

The mediator behaves as can be expected from a proper mediator.

Explanation

This rule of conduct forms the basis for the mediator’s actions and is the framework for all other rules of conduct that derive from it. Integrity is a core value for the mediator. The mediator is expected to adhere to their professional code and to general social and ethical norms and values, even under external pressure to deviate from them. The mediator acts at least as a reasonably competent and reasonably acting mediator.

2. Transparency

The mediator provides clarity about the mediation process to the parties.

Explanation

Acting transparently means that the mediator provides clarity to the parties about the mediation process, including their own role in it. The mediator makes issues with or between the parties discussable and is clear about their approach and what the parties can expect from them. Openness and clarity are essential for building trust and a good working relationship with the parties. This also prevents difficulties at a later stage.

3. Party Autonomy

3.1 The mediator ensures that all parties involved in the mediation respect the autonomy of the parties.

3.2 The mediator does not make any judgments about the issue.

Explanation
The mediator safeguards the autonomy of the parties and assesses their commitment and voluntary participation in the mediation. The parties make their own choices and bear the responsibility for them. The mediator stands between the parties and supports them in making their choices and seeking a solution. The mediator may provide information to the parties as needed, enabling them to form an informed opinion and determine their position.

The mediator does not make judgments about the issue or any part of it. They do not make decisions regarding the content of the conflict between the parties. The mediator is also cautious about expressing their opinion or giving advice on what a party should or should not do. An opinion or advice is generally not value-free and impartial and conflicts with party autonomy and the neutral role of the mediator. The mediator reminds parties, if necessary, of the option to consult external advisors or experts during the mediation.

If the mediator, at the explicit request of all parties, wishes to make a binding or non-binding statement, they must clearly distance themselves from their role as mediator. It must be clear to the parties in what capacity they are acting. The mediator documents this role change in writing.

4. Independence

4.1 The mediator maintains independence. They have no interest that could compromise their independence.

4.2 If the mediator cannot guide the issue independently, they will not accept the assignment or will withdraw.

Explanation

A mediator with an interest in the mediation that could obstruct or compromise their independence does not accept their appointment. This interest could stem from a personal or business relationship that the mediator or one of their colleagues has or has had with the parties, or from the outcome of the mediation. They must also be aware of the potential appearance of dependence and act accordingly. The mediator provides clarity to the parties about their position if their independence is questioned or could be questioned. They then ask the parties whether they wish to proceed with them on this basis. The mediator ensures that they maintain their independence both during and after the mediation. If necessary, they withdraw.

5. Impartiality

5.1 The mediator is there for all parties. They are impartial and act without bias.
5.2 If the mediator cannot guide the issue impartially, they will not accept the assignment or will withdraw.

Explanation
The mediator’s neutral and impartial role is characteristic. The mediator is there for all parties. They hold a position of trust with each of them. The mediator does not show any preference or disapproval for (one of the) parties in word or deed and acts without bias towards them. The parties’ trust that the mediator is impartial is essential for the quality of the mediation process.

6. Confidentiality

The mediator only engages in those issues in which they can maintain their impartiality. They are always vigilant that their impartiality is not compromised by bias based on, for example, personal characteristics, position, religion, or background, or by judgments regarding positions or interests presented by the parties.

The mediator is expected to follow their own conduct critically and continuously safeguard their neutral, impartial position. If it becomes impossible for the mediator to guide the mediation impartially, they will withdraw.

6.1 The mediator ensures that all participants in the mediation commit to respecting the confidentiality of the mediation.
6.2 The mediator has a duty of confidentiality.
6.3 The duty of confidentiality continues after the termination of the mediation.

Explanation

The mediator ensures that they and all other participants in the mediation expressly commit to the duty of confidentiality to promote the mediation process. The starting point is that everything exchanged verbally and in writing during a mediation is confidential. This information may not be used outside the mediation during or after its conclusion, unless the parties explicitly make different agreements with each other and the mediator, for example, if feedback is needed for the continuation of the mediation. Information that was already public or known before the mediation is excluded from the duty of confidentiality. The duty of confidentiality applies to all parties involved in the mediation process, and particularly to the mediator as the primary responsible party to ensure that the participants commit to confidentiality and respect the confidentiality.

The mediator has a duty of confidentiality regarding everything they learn in their capacity as a mediator during conversations with the parties and their advisors, both collectively and individually. Their duty of confidentiality also applies to exploratory discussions with the parties before a mediation agreement has been concluded with them. Feedback from the mediator to referrers or clients that goes beyond a notification of the conclusion of the mediation occurs only in consultation and with the consent of all parties.

The mediator’s duty of confidentiality is waived to the extent that the mediator needs it to defend themselves in proceedings, including complaint or disciplinary procedures. Certain exceptions to the mediator’s duty of confidentiality can be found in the MfN Mediation Regulations.

7. Competence

The mediator only accepts a mediation when they possess the necessary qualities to ensure its proper conduct.

Explanation

A mediator is expected to have the knowledge, skills, professional attitude, and personal qualities required to ensure a good course of the mediation. If this is not the case or is insufficient, they do not accept the mediation. If the mediator has already accepted the case, they withdraw.

The expected knowledge includes knowledge of communication and conflict resolution, negotiation concepts, and intervention techniques. The expected knowledge may also involve substantive expertise in the area in which the issue occurs if the parties have appointed the mediator specifically for that reason. The skills expected of the mediator may include intervention techniques aimed at improving communication between parties, clarifying the problem and the involved emotions and interests, and guiding negotiations between the parties. The mediator also possesses more technical skills, such as discussing and concluding a mediation agreement and documenting agreements in a settlement agreement.

The essence of the professional attitude is that the mediator is integral and reliable, performs their work to the best of their ability, and is willing to continuously educate and develop as a mediator. Personal qualities are essential for the mediator. The mediator is expected to be balanced, flexible, empathetic, and decisive and to operate well in a context where pressure and conflicting interests play an undeniable role.

8. Working Method

8.1 The mediator is responsible for the mediation process and monitors its progress.
8.2 The mediator concludes a written mediation agreement with all parties prior to the mediation that includes at least confidentiality and voluntariness.
8.3 The mediator does not involve third parties in the mediation, unless with the consent of the parties.

Explanation
The essence of the mediator’s task is to monitor the mediation process. The mediator handles the mediation with the necessary urgency and allocates sufficient time for it. They explain the mediation process, the content of the mediation agreement, and the regulations. The mediator verifies whether the parties understand the conditions and consequences related to signing the mediation agreement.

The mediator ensures a balanced treatment of the issue and promotes that each party is equally heard, has sufficient access to the necessary information, and has the opportunity to consult financial, legal, psychological, or other advisors if needed. The mediator is responsible for the contractual documentation of the confidentiality obligations of the parties and themselves in the mediation agreement. The confidentiality obligation of the parties primarily serves to promote open communication during the mediation discussions and to build trust. The parties jointly determine the scope of the confidentiality obligation. They assess whether it is necessary for the progress of the mediation to consult with certain individuals outside the mediation table. The mediator ensures that the confidentiality obligation and its scope are documented.

9. Fees and Costs

9.1 The mediator makes an agreement with the parties in advance regarding their fee and additional costs and documents this agreement in the mediation agreement.
9.2 Unless the mediator has good grounds to believe that the parties are not eligible for mediation aid, they are obliged to inform the parties of this possibility. If the parties may be eligible for mediation aid but choose not to use it, the mediator documents this in writing.
9.3 The mediator will not demand or receive any compensation for their work in mediation to which they have been assigned, in any form whatsoever, apart from the co-payment imposed by the Legal Aid Board.
9.4 The mediator is permitted to agree on a fixed amount for the mediation.
9.5 The mediator ensures a clear, transparent invoice.

Explanation
At the start of the mediation, the mediator makes a clear agreement regarding their fee (or a fixed amount for the mediation) and any additional costs. The mediator agrees with the parties on who will bear the costs of the mediation. They make the agreement with the parties in writing, including how to deal with additional costs incurred. The mediator also takes the initiative to discuss with the parties the potential eligibility for mediation aid before starting the mediation process.

The mediator provides a clear, transparent invoice with a breakdown of the work performed and the incurred costs so that the parties are well informed about the costs of mediation. Invoicing is done in accordance with the agreed arrangements in the mediation agreement.

10. Professionalism

The mediator acts as a mediator in a responsible and professional manner.

Explanation
The mediator acts responsibly, reliably, and professionally. They seek support from their colleagues or supervisors if they are confronted with a complex or unclear situation. They also seek help for their professional development. The mediator ensures that they represent their profession well and contributes to the profession’s reputation. This includes ensuring compliance with all relevant regulations and ethical standards.

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