These Ethical Guidelines are intended to promote public confidence in the mediation process and to be a general guide for mediator conduct. They are not intended to be disciplinary rules or a code of conduct. Mediators should be responsible to the parties, the courts and the public, and should conduct themselves accordingly. These Ethical Guidelines are intended to apply to mediators conducting mediations in connection with all civil, criminal, administrative and appellate matters, whether the mediation is pre-suit or court-annexed and whether the mediation is court-ordered or voluntary.
Comment. A mediator's obligation is to assist the parties in reaching a voluntary settlement. The mediator should not coerce a party in any way. A mediator may make suggestions, but all settlement decisions are to be made voluntarily by the parties themselves.
Comment (a). A mediator should not use information obtained during the mediation for personal gain or advantage.
Comment (b). The interests of the parties should always be placed above the personal interests of the mediator.
Comment (c). A mediator should not accept mediations which cannot be completed in a timely manner or as directed by a court.
Comment (d). Although a mediator may advertise the mediator's qualifications and availability lo mediate, the mediator should not solicit a specific case or matter.>
Comment (e). A mediator should not mediate a dispute when the mediator has knowledge that another mediator has been appointed or selected without first consulting with the other mediator or the parties unless the previous mediation has been concluded.
Comment (a). A mediator should avoid the appearance of impropriety in regard to possible negative perceptions regarding the amount of the mediator's fee in court-ordered mediations.
Comment (b). lf a party and the mediator have a dispute that cannot be resolved before commencement of the mediation as to the mediator' s fee, the mediator should decline to serve so that the parties may obtain another mediator.
Comment (a). A mediator should withdraw from a mediation if it is inappropriate to serve.
Comment (b). If after commencement of the mediation the mediator discovers that such a relationship exists, the mediator should make full disclosure as soon as is practicable.
Comment. A mediator's qualifications and experience constitute the foundation upon which the mediation process depends; therefore, if there is any objection to the mediator's qualifications to mediate the dispute, the mediator should withdraw from the mediation. Likewise, the mediator should decline to serve if the mediator feels unqualified to do so.
Comment (a). A mediator should inform the parties about the mediation process no later than the opening session.
Comment (b). At a minimum, the mediator should inform the parties of the following: (1) the mediation is private (Unless otherwise agreed by the participants, only the mediator, the parties and their representatives are allowed to attend; (2) the mediation is informal (There are no court reporters present, no record is made of the proceedings, no subpoena or other process is allowed, and no rulings are made on the issues or the merits of the case; and (3) the mediation is confidential to the extent provided by law. (See e.g., Sec. 154.053 and 154.073, Tex. Civ. Prac. & Rem. Code.)
Comment. A mediator should not convene the mediation if the mediator has reason to believe that a pro se party fails to understand that the mediator is not providing legal representation for the pro se party. In connection with pro se parties, see also Guidelines Numbers 9, 11 and 13 and associated comments below.
Comment (a). A mediator should not permit recordings or transcripts to be made of mediation proceedings.
Comment (b). A mediator should maintain confidentiality in the storage and disposal of records and should render anonymous all identifying information when materials are used for research, educational or other informational purposes.
Comment (c). Unless authorized by the disclosing party, a mediator should not disclose to the other parties information given in confidence by the disclosing party and should maintain confidentiality with respect to communications relating to the subject matter of the dispute. The mediator should report to the court whether or not the mediation occurred, and that the mediation either resulted in a settlement or an impassé, or that the mediation was either recessed or rescheduled.
Comment (d). In certain instances, applicable law may require disclosure of information revealed in the mediation process. For example, the Texas Family Code may require a mediator to disclose child abuse or neglect to the appropriate authorities. If confidential information is disclosed, the mediator should advise the parties that disclosure is required and will be made.
Comment. If a mediator or the parties find that the mediator's impartiality has been compromised, the mediator should withdraw from the mediation process. Impartiality means freedom from favoritism or bias in word, action, and appearance, it implies a commitment to aid all parties in reaching a settlement.
Comment (a). In appropriate circumstances, a mediator should encourage the parties to seek legal, financial, tax or other professional advice before, during or after the mediation process.
Comment (b). A mediator should explain generally to pro se parties that there may be risks in proceeding without independent counsel or other professional advisors.
Comment. It is generally for a mediator to serve in a judicial or quasi-judicial capacity in a matter in which the mediator has had communications with one or more parties without all other parties present. For example, an attorney-mediator who has served as a mediator in pending litigation should not subsequently serve in the same case as a special master, guardian ad litem, or in any other judicial or quasi-judicial capacity with binding decision making authority. Notwithstanding the foregoing, where an impassé has been declared at the conclusion of a mediation, the mediator, if requested by the parties, may serve as the arbitrator in a binding arbitration of the dispute, or as a third-party neutral in any other alternative dispute proceeding, so long as the mediator believes nothing learned during private conferences with any party to the mediation will bias the mediator or will unfairly influence the mediator's decisions while acting in his/her subsequent capacity.