Standards of Practice
Updated April 2013
Definition:
Standards of practice are sets of requirements for professionals, in this context typically neutral professionals such as mediators and arbitrators. They may contain elements of ethical requirements, qualifications, and/or credentialing.
Users:
Neutrals, attorneys, and other representatives of parties need to understand the standards of practice that apply to any particular process they intend to engage in. Parties themselves need to understand the relevant standard(s) when engaging a representative or neutral, as a guide to what to expect.
Description:
Standards of practice vary widely from setting to setting, and are often drafted without a cohesive understanding of what problems they are intended to solve. Thus they often contain two fundamentally different types of standards: those applying to ethics, and those applying to qualifications or capability to perform the work.
Example:
The following are from Model Standards of Practice for Family and Divorce Mediation, adopted by several national membership organizations of mediators. As will be evident, some involve ethical considerations (e.g., Standard V) while others have a closer relationship to qualifications and ability (e.g., Standards IX and X). They are more fully explicated at http://www.mediate.com/articles/afccstds.cfm.
STANDARD I: A family mediator shall recognize that mediation is based on the principle of self-determination by the participants.
STANDARD II: A family mediator shall be qualified by education and training to undertake the mediation.
STANDARD III: A family mediator shall facilitate the participants' understanding of what mediation is and assess their capacity to mediate before the participants reach an agreement to mediate.
STANDARD IV: A family mediator shall conduct the mediation process in an impartial manner. A family mediator shall disclose all actual and potential grounds of bias and conflicts of interest reasonably known to the mediator. The participants shall be free to retain the mediator by an informed, written waiver of the conflict of interest. However, if a bias or conflict of interest clearly impairs a mediator's impartiality, the mediator shall withdraw regardless of the express agreement of the participants.
STANDARD V: A family mediator shall fully disclose and explain the basis of any compensation, fees, and charges to the participants.
STANDARD VI: A family mediator shall structure the mediation process so that the participants make decisions based on sufficient information and knowledge.
STANDARD VII: A family mediator shall maintain the confidentiality of all information acquired in the mediation process, unless the mediator is permitted or required to reveal the information by law or agreement of the participants.
STANDARD VIII: A family mediator shall assist participants in determining how to promote the best interests of children.
STANDARD IX: A family mediator shall recognize a family situation involving child abuse or neglect and take appropriate steps to shape the mediation process accordingly.
STANDARD X: A family mediator shall recognize a family situation involving domestic abuse and take appropriate steps to shape the mediation process accordingly.
STANDARD XI: A family mediator shall suspend or terminate the mediation process when the mediator reasonably believes that a participant is unable to effectively participate or for other compelling reason.
STANDARD XII: A family mediator shall be truthful in the advertisement and solicitation for mediation.
STANDARD XIII: A family mediator shall acquire and maintain professional competence in mediation.
Application:
Standards of practice tell any negotiator or party what he or she should expect from a neutral, and are thus essential background reading for anyone newly engaging in a particular process or newly using a particular system of mediation, arbitration, etc. Systems may not call their standards of practice by that name, and it is in fact better practice to separate clearly the conceptually dissimilar ethical standards and qualifications/ability standards.
