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International Commercial Mediation

Page 193 12 MEDIATOR ETHICS Mediators are in a rather curious position with respect to the parties in mediation. Whilst the mediator assists the parties in reaching settlement of their disputes through facilitating communication or perhaps evaluating their dispute, in most cases, the mediator only assists them in identifying and exploring their issues, interests and possible bases for agreement and nothing more. The mediator is not anyone’s representative, anyone’s counsel, nor in any other relationship other than that of a disinterested third party. Unfortunately this is where the problems can start to arise. If the mediator listens to confidential information what prevents her/him from chatting about this to others outside of the specific mediation? What prevents the mediator from accepting little gifts from one side or the other or worse still large gifts? Until recently very little other than the mediator’s built-in sense of morality or in the case of mediators who had other professions, such as the law, the ethical standards for that profession. Until recently the mediation profession did not have its own set of ethical rules and standards and in particular did not have any rules with which to either gauge its members or based upon which to impose sanctions upon offenders. Additionally it became problematic for the public, when hiring a mediator, to appreciate what they were getting, what to expect, and more importantly what to do if the mediator failed the ethical standard test that should be imposed based upon the representations made as to confidentiality, fair dealing, etc.

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