Code of Conduct for Mediators
This is the code of ethics for mediators in pursuant to Article 5J of Act XVI of 2004.
This code is intended to establish the basic ethical principles that mediators ought to observe in the performance of their duties as mediators. They are not and do not purport to be exhaustive or as being prescriptive or detailed rules addressing any and every possible situation that may arise during the course of a mediation. Mediations come in different forms, have different individuals as parties, deal with an array of life situations – accordingly trying to be prescriptive with detailed rules in dealing with each and every situation would serve no useful purpose. The Board however believes that there are fundamental ethical principles and rules of conduct that are required to be complied with in any situation by a mediator – rules dealing with confidentiality and impartiality that are common. These rules, therefore do not purport to provide mediators with a comprehensive manual that will resolve all of their day to day problems – but provide guidance that should enable them through general principles address those situations by bringing their best judgement to bear on those situations in the light of these principles.
These rules are therefore intended to provide the ground rules that will ensure the integrity of the mediation process that instills the trust and confidence of consumers using this service as the preferred manner in which to settle their disputes. It is in the interest of the general public that the mediation process is one that is founded on sound ethical principles that demands of the main players in that process untainted levels of integrity and probity, that are not only intrinsic in the process but which are perceived as such by the end user of the service.
The Board may from time to time issue guidance notes to mediators or supplemental rules to this code, either generally or specifically intended for particular types of mediations.
Persons appointed to act as mediators whether under the provisions of the Mediation Act, 2004 (hereinafter referred to as “the Act”) or under any other law in force in Malta, are required to abide by this Code of Conduct. This Code is to serve as guidance to mediators in the performance of their professional responsibilities, duties and acceptable behaviour and is intended to assist them in attaining the desired level of conduct with a view to ensuring the integrity of the mediation process and the utility of the process as part of dispute resolution. Mediators shall be bound to observe the principles of conduct established in this code.
A mediator shall only act in such capacity if the Board deems that such person is fit and proper to undertake the task required of him. A mediator is also under an obligation to improve the requisite professional skills and abilities through proper ongoing training and updating of his/her education and practice in mediation skills. S/he should pursue and participate actively in educational and training opportunities promoting proficiency in mediation skills as these may arise from time to time.
A mediator must observe high standards of conduct so that the integrity and fairness of the process will be assured. Mediators should, at all times, act and endeavor to be seen to act with impartiality towards the parties and should, at all costs, avoid a conduct that implies bias in favour of any of the parties or their representatives. The mediator must hold the trust and confidence of the parties at all time during the mediation process.
In order to maintain the confidence of the parties in the impartiality of the process, the mediator should inform the parties before the commencement of the process that, if the need arises in the course of the mediation, he/she may need to hold meetings in private with the parties on an individual basis. , If the parties or any one of them is assisted by legal counsel during any time during the mediation process, and the mediator is of the view that it is in the best interests of the mediation process to conduct meetings in private with the parties on an individual basis, the mediator would need to invite the parties to inform their legal counsel about the necessity of such a private meeting. Such meetings will only be held if both parties agree The consent or otherwise to conducting such private meetings needs to be given to the mediator in writing by the parties.
The mediator together with the parties and their legal counsel, if they are so assisted, shall, at the first meeting, determine the manner in which communications between the mediator, the parties and their respective legal counsel, if any, shall be conducted. In the absence of such agreement the mediator shall communicate only with the parties and not their counsel or other representatives.
The mediator shall, in accordance with the method of communication agreed pursuant to the above, notify the parties and their legal counsel, if they are so assisted, with the dates, times and venue of the sittings to be held by him/her with the parties whether individually or collectively.
The dates, venue and times of sittings should, as far as practicable, be agreed to by all parties. A mediator shall use best endeavours to ensure that agreement is reached on the dates, venue and times for mediation meetings, and shall allow sufficient flexibility more conducive to an amicable solution, in the event that either of them may not be able to keep a firm appointment. A mediator shall however bring impartial judgment to bear on the process and where it is apparent that a party is abusing of the flexibility of the process, the mediator shall ensure that the process is not stultified and may in such situations set dates, venues and times for mediation meetings even in the absence of the agreement of the parties or any of them.
All communications or settlement discussions by and between the parties in the course of mediation shall remain confidential and no evidence of anything said or documents produced during the mediation process shall be admissible in any litigation proceedings.
The mediator shall also ensure that the parties concerned enter into a written agreement that reflects this position and whereby each of the parties agrees and acknowledges that he/she shall not, in any eventual adversarial proceedings, in any manner make reference to any statement, document or other information that may have come to his knowledge by virtue only of the fact that such statement, document or other information was disclosed to him during the mediation process.
Furthermore, the mediator himself shall not and may not be compelled in any adversarial or other proceedings to make any disclosure of matters of which he/she becomes aware by virtue of the office or role as mediator, unless each of the parties to the mediation process shall have duly and expressly agreed, in writing, to the disclosure of such information by the mediator.
A mediator should ensure that the expectations of the parties regarding confidentiality are communicated and understood by the parties.
In addition to the statutory requirement of confidentiality, any information disclosed in confidence to a mediator by one of the parties should not be disclosed to the other party or parties without the express permission of the party concerned.
For the avoidance of doubt, the obligation of confidentiality of a mediator does not extend to matters or other information that come to the knowledge of the mediator outside the ambits of the mediation process. Accordingly, a mediator ought to advise the parties to the mediation process in advance that any information, documentary or otherwise that may be brought to his attention outside the ambits of the mediation process, shall be made available to all the parties to the mediation process.
Notwithstanding the above, in the event that a mediator comes in possession of information about the dispute which is the subject of the mediation process being conducted by him/her in any manner other than during a mediation meeting or by virtue of correspondence or written submissions forming part of the process, and the mediator feels that the information in question could reasonably place the mediator in a conflict of interest or in a situation where he/she cannot perform his/her duties as is required by law and this code, then the mediator shall immediately withdraw from the process.
The mediator can, however, make disclosures to the Malta Mediation Centre for statistical purposes without revealing or being likely to reveal the identity of a person about whom the information relates or that would otherwise enable the particular circumstances of the dispute to be identified.
Prior to the commencement of the mediation, the mediator should ensure that the parties have understood and expressly agreed the terms and conditions of the Mediation Agreement setting out the terms of the mediation and in particular any applicable provisions relating to obligations of confidentiality on the mediator and on the parties.
The agreement should be dated and signed by the mediation parties and by the mediator in anticipation of the mediation proceedings.
It is acknowledged that each dispute can have its own peculiarities and that accordingly an element of flexibility is required in the procedures and methods used to address different disputes.
The mediator shall be at liberty within the ambits of the obligations of impartiality and confidentiality to determine the procedure that shall be adopted during a particular mediation process. In view of the foregoing, the mediator shall clearly explain the procedure that he/she intends to adopt for the particular mediation to the parties and if necessary to their legal representatives at the commencement of the mediation process.
- Mediator’s role
In the conduct of the mediation process, the principal role of the mediator is to assist and facilitate the parties in mediation to reach a solution to the dispute referred for mediation. The mediator should avoid addressing matters during mediation meetings that are not relevant to the matter referred for mediation, unless in his/her best judgment, such matters may be conducive to the parties reaching a solution.
The mediator is responsible for managing the mediation process; whilst he/she controls the process he/she does not control the content of the discussion or the outcome of the dispute.
S/he should, therefore, make it clear to the parties at the outset that:
- His/her task is to facilitate the discussion and that he/she would in no way be acting as a judge;
- the dispute is their own; accordingly they need to take an active role in the process; and
- they are there to discuss issues between themselves on the merits of a potential settlement and to persuade each other and not the mediator.Clearly, the mediator’s duty and role is to assist the parties to find ways and means to resolve their differences and whilst he/she must not make decisions for the parties, he/she should assist them to search, explore and identify options for settlement.
The mediator should also take an active role in suggesting to the parties what he/she believes to be fair in order to help them overcome any obstacle.
During the course of a mediation process situations may arise where mediators may need to consult on the best course of action to take in particular circumstances as and when they arise. A mediator who is placed in such situations where he/she may need guidance of the role and conduct expected of him/her may request the Centre in writing for guidance from the Centre on the best course of action to take in the circumstances. The Centre shall after considering a matter referred to it give guidance to the mediator on the manner in which he/she ought to proceed in the circumstances to ensure the integrity, actual and perceived, of the mediation process. Nothing in the foregoing shall be construed as a reason for a mediator, if he/she considers in his/her best judgment that he/she is no longer capable to conduct a particular mediation in an impartial manner to withdraw from his/her role as a mediator.
- Power to settle
The mediator should, at the commencement of the process, request all the parties involved in the mediation whether they have authority to settle the dispute in their own right or whether they have to seek approval from someone else before an agreement is reached.
In the event that either or any of the parties is acting on behalf of another, such as a company or another person through a power of attorney, and does not have the authority to settle matters without the prior instructions of the body or person represented, the mediator should ascertain that any agreement reached at the mediation be subject to the approval in writing being given by the person authorised to bind the company or such other person, before the agreement is signed by the parties.
- Mediators to act expeditiously
A mediator must commence the mediation as soon as reasonably possible after the reference is made. Moreover, he/she should ascertain that the mediation parties reach a timely resolution.
- Fairness of the process
The mediator should see to it that each party has adequate opportunities to be properly involved in the process, particularly so in the event of power imbalances between the parties. The mediator should pay extra care in situations where there is an imbalance between one party and another, for instance where one party is assisted by legal counsel and the other is not, and should accordingly caution the party whom he/she considers to be at a disadvantage that he/she should address the imbalance as soon as practicable whilst allowing him/her reasonable time to do so. If the imbalance is not addressed then the mediator should ensure that the other party is not allowed to abuse the situation of imbalance during mediation sessions. The mediator must ensure that mediation sessions are conducted in a way that gives all parties adequate opportunity to address the issues of importance to them.
If it is deemed appropriate, the mediator may, after informing the parties, terminate the mediation if he/she considers that continuing the mediation is unlikely to result in a settlement.
In addition in cases of family mediations a mediator shall, after informing the parties, terminate the mediation if he/she considers that continuing the mediation may place one of the parties at risk; or may place children who are minors at risk.
- Conflict of Interest
A mediator has the duty and obligation to disclose to the parties any actual or perceived conflict of interest as soon as he/she becomes aware of it whether prior to accepting or after having accepted to act.
In such cases the mediator may only accept or continue the mediation provided that the parties explicitly consent, in writing, and that he/she is reasonably certain of being able to carry out the mediation with full independence in order to guarantee full impartiality.
Any party to the mediation has the right to refuse to appear before such a mediator, in which case the mediator should withdraw.
Mediators should bear in mind that the duty to disclose a conflict of interest is a continuing obligation throughout the mediation process.
- Legal and other advice
Any mediation process will, if successful, have legal repercussions on the rights and obligation of the parties to mediation. Accordingly mediators should urge the parties to seek legal advice before they commit to the signature and execution of any settlement agreement. If the parties, or any one of them, are not assisted by legal counsel during the mediation process, the mediator should make them aware, a priori, that they may be assisted by an advocate, legal procurator or any individual designated by them during the course of the mediation. He/She should intimate the parties that legal advice should invariably be sought from their own lawyers.
A mediator, whatever his/her calling or profession shall not give any party to the mediation any professional advice and shall inform the parties to mediation that he/she is acting solely as a mediator and not in any other capacity and as such he/she will refrain from giving professional advice.
- Termination of mediation
The mediation ends either when full agreement is reached, or when the parties cannot arrive at a solution to their dispute, or when one of the parties elects not to continue with the mediation process. The mediation should also be terminated if the parties reach only partial settlement.
In those cases where the parties do not arrive at a solution of the dispute or of an issue or issues in the dispute, the mediator should abandon the mediation only after he/she is fully satisfied that after having given the parties an opportunity to reconsider their position, any further efforts would not lead to the resolution of the dispute.
The mediation parties are required by law to execute a written agreement only when full agreement is reached. However, in the case of a partial settlement, the mediator should enjoin the parties to draw up and sign a document incorporating those issues on which agreement would have been reached.
It is not the mediator’s role to draft the settlement agreement following a settlement reached through mediation. A mediator should simply furnish the mediation parties with a written document duly signed by himself/herself, whereby he/she confirms that a full agreement has been reached between the parties on the matters mentioned in the document and that the mediation has been terminated. If the mediation is terminated because no settlement is reached, the mediator should provide the parties with a statement to that effect. Any agreement reached must invariably be drawn up by the mediation parties’ lawyers or by the parties themselves. If the parties are not represented by lawyers at mediation, the mediator shall adjourn the mediation in order to enable the parties to seek legal assistance in drafting the final agreement.
- Disqualification of a mediator
Qualification to mediate does not in any way confer on a mediator a permanent right. The Malta Mediation Centre may remove a person from the list of mediators if, in its considered opinion, such a person is deemed to be unfit to continue in office, or in any of the circumstances mentioned in the Act.
- Interpretation and Application of this Code
The interpretation of the provisions of this Code and of any rules or guidelines that may be issued thereunder, from time to time, shall vest solely and exclusively in the Board of Governors of the Malta Mediation Centre.
The Board of Governors of the Centre shall also have the power to take such disciplinary action against any mediator whose conduct, in the opinion of the Board of Governors, does not adhere to or falls short of the conduct required by the principles in this code or in the opinion of the Board constitutes unbecoming behaviour.
A mediator against whom any allegations of non-compliance with the code or of unbecoming behaviour are made, shall be called upon by the Board of Governors or a duly appointed sub-committee thereof to answer any allegations made with respect to his/her conduct.
The Board shall only determine the allegations after giving the mediator against whom the allegations are made as well as the person making the complaint due opportunity to be heard. During such proceedings both the mediator and the complainant may be assisted by legal counsel.
Failure by the mediator to cooperate with or to appear before the Board of Governors when called upon to do so shall be noted by the Board of Governors or its sub-committee and unless the Board of Governors considers that there is justifiable cause for such non-attendance, the Board of Governors may take such action or measure with respect to such mediator as it considers appropriate, taking account of all circumstances.
A mediator found guilty of having contravened any of the provisions of this code or failed to abide by any of its principles or is otherwise found guilty of unbecoming behaviour, shall have his/her name removed from the list of mediators for such time as the Board of Governors deems fit and appropriate. Furthermore, the Board of Governors may in its absolute discretion decide whether circumstances would warrant the publication of such removal in the press.