Md. Standards of Conduct for Court-Designated ADR Practitioners 15

Courts and Judicial Proceedings, section 3-1801 et. seq.

STANDARD I. SELF-DETERMINATION

A. A mediator shall support and respect the self-determination of all parties, so that each

party may make voluntary, uncoerced, and informed decisions about their participation in

the mediation process and the mediation outcome.5

1. A mediator should consider and explore any request that a party may make about

the mediation process, and attempt to address the interests underlying the

request, in a manner consistent with the mediator’s practices, qualifications, and

other duties under these Standards.6

2. A mediator should inform the parties that they may consult other persons to help

them make informed choices.7 If a party requests the opportunity to obtain

additional information to help the party make an informed decision, the mediator

should allow the party a reasonable opportunity to do this.8

B. A mediator shall not undermine any party’s self-determination to promote or achieve a

settlement. A mediator shall resist any outside pressure to achieve settlement, including

any pressure from courts or other referral sources, programs or organizations that the

mediator is affiliated with, employers, or funders.

5 DRAFTERS NOTE: The parties may always exercise self-determination regarding the manner and extent of their own

participation in the mediation process, whether to enter an agreement, and the terms of any agreement. Unless

otherwise required by a court or other agency, the parties may also exercise self-determination regarding whether to

mediate, the selection of a mediator, the participants in the mediation, and whether to withdraw from, postpone, or

terminate mediation.

6 DRAFTERS NOTE: A mediator is responsible for giving the parties a general explanation of the mediation process that the

mediator will provide and for the quality and integrity of that process. (See Standard VI.) The parties may often exercise

self-determination regarding the mediation process by making an informed selection of a mediator and by telling the

mediator their process preferences. However, the parties do not control the mediation process.

7 DRAFTERS NOTE: The mediator must be careful to advise the parties that they may consult others at a time and in a

manner that is consistent with the mediator’s obligations to act impartially and respect party self-determination.

8 DRAFTERS NOTE: A mediator cannot personally ensure that each party has made informed decisions.

C. If a mediator has reason to believe that a party is having difficulty understanding,

participating, or exercising self-determination in a mediation, the mediator shall consider

and, if appropriate, explore with the participants, possible ways to increase the party’s

ability to participate in mediation. If the difficulty cannot be satisfactorily addressed, the

mediator should terminate the mediation.

D. If a mediator has reason to believe that abuse, coercion, duress, or undue influence may

be preventing a party from fully participating or exercising self-determination, the

mediator shall consider and, if appropriate, explore with the participants, whether there is

a way to conduct the mediation in a manner that would allow the party to participate

freely, safely, and without fear of retaliation. If the mediator concludes that any party

cannot participate safely and without fear of retaliation, the mediator shall terminate the

mediation.

STANDARD II. IMPARTIALITY

A. A mediator shall conduct all aspects of a mediation in an impartial manner, which means

acting without favoritism, bias, or prejudice.

1. A mediator shall decline a new mediation or withdraw from an ongoing mediation

if the mediator cannot act in an impartial manner for any reason.

2. A mediator shall not favor or disfavor any participant for any reason, such as the

participant’s race, age, sex, gender identity, sexual orientation, disability,

appearance, personal characteristics, background, values, beliefs, or actions or

behavior during or outside the mediation process.

3. A mediator shall make an effort to be aware of the mediator’s biases and should

learn about unconscious and implicit biases.

B. A mediator shall refrain from statements and conduct, during and outside of mediation,

that might reasonably raise a question about the mediator’s impartiality.9

C. A mediator shall not offer, give, solicit, or accept any item or service of value, before,

during or after a mediation, if doing so might reasonably raise a question about the

mediator’s impartiality.

STANDARD III. CONFLICTS OF INTEREST

A. A mediator shall not mediate a dispute in which the mediator has any direct or indirect

conflict of interest that is or reasonably should be known to the mediator unless the

mediator has disclosed the relevant circumstances to all parties, the parties have

thereafter agreed that the mediator may conduct or proceed with the mediation, and the

conflict would not undermine the integrity of the mediation process.

1. A conflict of interest is any personal, professional, or financial relationship or

circumstance that might reasonably raise a question about the mediator’s

impartiality. A conflict of interest may arise from a relationship or circumstance

that existed before the mediation, one that exists at the time of the mediation, or

one that might occur after the mediation.

2. A direct conflict of interest may arise from:

a. a personal, professional, or financial relationship between the mediator and

a participant in the mediation; or

DRAFTERS NOTE: A mediator should be aware that public statements, writings, and social media activities may give the

appearance that the mediator is not impartial.

b. the mediator’s interest in a potential outcome of the mediation or the

conflict.

3. An indirect conflict of interest may arise from a personal, professional, or financial

relationship between the mediator and another person who, or an entity that, has:

a. a personal, professional, or financial relationship with a participant in the

mediation; or

b. an interest in a potential outcome of the mediation or the conflict.

B. A mediator shall make a reasonable effort to identify any conflicts of interest as soon as

possible after being asked to conduct a mediation.

C. If a mediator knows or learns of any relationship or circumstance that creates or might

create a conflict of interest, the mediator shall promptly do one of the following:

1. If disclosure can be made without violating confidentially, disclose the relationship

or circumstance to the parties. If the mediator and all parties then agree and doing

so would not undermine the integrity of the mediation process, the mediator may

proceed with the mediation.

2. Decline to accept the mediation, if it has not begun.

3. Withdraw from the mediation, if it has begun.

D. If a conflict of interest would undermine the integrity of the mediation process, the

mediator shall decline to accept a new mediation or withdraw from an ongoing mediation,

regardless of any other desire, agreement, or consent of the parties.

E. While a mediation is pending or ongoing, the mediator shall not perform professional

services in any other capacity for any party without the informed consent of all parties in

the mediation.

F. While a mediation is pending or ongoing, the mediator shall not establish any new

relationship or involvement that might reasonably raise a question about the mediator’s

impartiality.

G. After a mediation has concluded, the mediator shall avoid any potential new relationship

or involvement with a participant or the subject of the dispute that might reasonably raise

a question about the mediator’s impartiality during the mediation, unless the parties to

the mediation have consented to the new relationship or involvement.10

STANDARD IV. COMPETENCE

A. A mediator shall offer, agree, or undertake to mediate a matter only if the mediator has

the knowledge, skills, and abilities to mediate the matter.11

1. A mediator shall have the ability to describe accurately the mediation skills,

techniques, and processes that the mediator uses.

2. A mediator shall have the ability to perform competently the services that the

mediator offers.

B. A mediator shall provide accurate and appropriately complete information about the

mediator’s training and experience, upon request, to potential mediation participants, to

any program from which the mediator accepts referrals, and to others.

DRAFTERS NOTE: In deciding whether a new relationship or involvement is permissible, or whether the parties’ consent

is required, the mediator shall consider the subject matter of the mediation, the time elapsed since the mediation, the

nature of the possible new relationship or involvement, and any other relevant factors.

DRAFTERS NOTE: Mediation training and experience are very important to mediate competently; however academic

degrees and professional backgrounds are not necessary to mediate competently. Specialized mediation training may be

required to mediate some types of conflicts. A mediator who is not competent to mediate a matter independently may be

competent to do so as a co-mediator or with appropriate mentoring or other assistance.

1. A mediator shall claim to meet the mediator qualifications of a public or private

entity only if that entity has criteria for qualifying mediators and has determined

that the mediator meets those criteria.

2. Any communication stating that a mediator is or has been certified shall identify

the organization or program that certified the mediator.

C. A mediator shall attend educational programs and participate in other activities to

develop, maintain, and enhance the mediator’s competence.12

D. If a mediator cannot conduct a mediation competently, the mediator shall promptly:

1. Discuss the situation with the parties and take appropriate steps to address it;

2. Obtain appropriate assistance; or

3. Withdraw from the mediation, either with or without disclosing the reason.

E. A mediator shall not conduct a mediation if the mediator’s ability to mediate competently

is impaired by medication, illness, drugs, alcohol, or other causes or conditions.

STANDARD V. CONFIDENTIALITY

A. A mediator shall follow all applicable mediation confidentiality statutes and rules of court,

and any confidentiality agreement between the parties and the mediator that is consistent

with the applicable statutes and rules.13

B. A mediator shall explain mediation confidentiality, including any applicable statutes, rules,

DRAFTERS NOTE: The number of hours of continuing education activities is not specified in these Standards because

different programs and rosters have different requirements. A mediator should satisfy the continuing education

requirements of each program for which the mediator mediates.

DRAFTERS NOTE: The existence and scope of mediation confidentiality in Maryland depends on the context and

circumstances of the mediation. If Title 17 of the Maryland Rules applies, mediation confidentiality is established and

governed by Rule 17-105. If Title 17 of the Maryland Rules does not apply, mediation confidentiality may or may not be

established and governed by the Maryland Mediation Confidentiality Act.

standards, and relevant exceptions, to all mediation participants as soon as practicable

and at the beginning of the first mediation session.

C. A mediator shall discuss with the participants whether and to what extent the participants

will maintain the confidentiality of mediation communications.

D. A mediator shall maintain the confidentiality of all mediation communications, conduct,

and outcomes unless a disclosure is required or permitted by an applicable statute or

provision of the Maryland Rules.14

E. A mediator who speaks privately with a participant during a mediation shall not reveal any

information that was privately communicated without the consent of that participant,

unless the disclosure is otherwise required or permitted by an applicable statute or

provision of the Maryland Rules.

F. A mediator should not reveal the name of, or other identifying information about, any

participant without that participant’s prior consent, unless required or permitted by an

applicable statute or provision of the Maryland Rules.

G. If it is necessary to identify a participant in a past, pending, or ongoing mediation to

determine whether a conflict of interest exists or to disclose an actual or potential conflict

of interest in another mediation:

1. the mediator should obtain the permission of the participant in the past, pending,

or ongoing mediation before revealing the participant’s name; and

2. if the mediator cannot obtain permission of the participant in the past, pending, or

14 DRAFTERS NOTE: Confidentiality is important to promote communication in mediation and to preserve mediator

impartiality, the appearances and perceptions of mediator impartiality, and the integrity of the mediation process.

ongoing mediation, the mediator should decline or withdraw from the other

mediation.

H. A mediator who participates in teaching, research, or evaluation of mediation shall protect

the anonymity of the participants and shall respect their reasonable expectations about

privacy and confidentiality.

STANDARD VI. QUALITY AND INTEGRITY OF THE MEDIATION PROCESS

A. A mediator shall conduct a mediation in a manner that promotes the quality and integrity

of the mediation process.

1. A mediator shall not conduct a dispute resolution process other than mediation

and call it mediation.

2. A mediator shall not knowingly misrepresent any material fact or circumstance in

the course of a mediation.

3. A mediator shall support honesty and candor by all participants.

4. A mediator shall not schedule or conduct a mediation in a timeframe that would

not allow a quality process.

B. A mediator shall follow all applicable statutes and Maryland Rules, these Standards, and

the requirements of any program for which the mediator is mediating.

1. If there is a tension or a conflict between the mediator’s obligations, the mediator

shall consider carefully the circumstances, determine whether there is a way to

reconcile the mediator’s obligations, and take appropriate action. If the mediator

cannot appropriately reconcile conflicting obligations, it may be necessary for the

mediator to decline, postpone, withdraw from, or terminate the mediation.

2. If the mediator knows of an applicable statute or rule that conflicts with and takes

precedence over a provision of these Standards, the mediator shall follow the

statute or rule, inform the participants of any conflict that may be relevant to the

mediation, comply with the spirit and intent of the preempted Standard to the

extent possible, and honor all remaining Standards.

3. If a program requirement conflicts with a provision of these Standards, the

mediator shall follow these Standards.

C. A mediator shall agree to mediate a matter only if the mediator is able to:

1. Commit the time, attention, and resources necessary to conduct an effective

mediation; and

2. Satisfy any reasonable expectations or requirements of the parties, and of any

referring program, concerning the timing of the mediation.

D. A mediator should help the parties identify the people who are appropriate participants in

the mediation and facilitate the participation of those people. The parties and mediator

may agree that other people may be included in or excluded from some or all sessions.

E. Before or at the beginning of the first mediation session, the mediator shall give all

participants a general description of the process that the mediator will provide. The

mediator shall substantially provide the process that the mediator described, unless the

mediator and the parties agree to a different process in a manner that is consistent with

these Standards.

F. A mediator shall not change from mediation to any other dispute resolution process

without first discussing the implications with the parties and obtaining their informed

consent. A mediator shall not change processes if doing so is prohibited by the

requirements of the mediation program that referred the case, if any.

G. During a mediation session, the mediator shall not perform any services other than as a

mediator.

H. Upon the request of a party, a mediator may provide information that the mediator is

qualified by training or experience to provide, if the mediator can do so consistently with

these Standards and any applicable statutes, Maryland Rules, program requirements, and

other standards of conduct.

I. If a mediator has reason to believe that anything occurring in a mediation is unlawful,

inconsistent with these Standards, or may undermine the quality or integrity of the

mediation process, the mediator shall consider carefully the circumstances and take

appropriate steps. Depending on the circumstances, these steps may include exploring the

issue in private session; continuing, postponing, withdrawing from, or terminating the

mediation; and reporting a situation to an appropriate person or authority, if this is

consistent with the mediator’s confidentiality obligations.

J. If a mediator decides to postpone, withdraw from, or terminate a mediation, the mediator

shall consider the safety of the participants and the integrity of the mediation process in

determining how to proceed. The mediator may inform some or all mediation participants

of the reason for postponing, withdrawing from, or terminating the mediation if this is

consistent with the mediator’s confidentiality and impartiality obligations.

STANDARD VII. ADVERTISING AND SOLICITATION

A. Any advertisement, solicitation of business, use of testimonials, and other communication

about a mediator’s services shall be consistent with these Standards.

B. A mediator shall be truthful and appropriately complete in any communications about the

mediator’s qualifications, experience, skills, techniques, processes, practices, services,

availability, and fees.

C. A mediator shall not make any promises or representations about potential mediation

outcomes.

D. A mediator shall not advertise or solicit business in any way that might reasonably create

an impression that the mediator favors or disfavors any party or parties.

STANDARD VIII. FEES AND OTHER CHARGES

A. If a mediator or an organization that the mediator is associated with will charge fees or

other charges, those fees and charges shall be reasonable in light of all relevant factors.

These factors may include the type and complexity of the matter, the mediator’s

qualifications and availability, the time required to prepare for and conduct the mediation,

and customary rates for similar mediation services.

B. A reasonable time before the first mediation session, the mediator shall inform each party,

or the party’s representative, of the fees and charges that the mediator and any

organization the mediator is associated with may charge in connection with the mediation.

C. If a mediator or an organization that the mediator is associated with will charge any fees or

other charges for a mediation, the fee arrangement should be in writing.

D. A mediator or an organization that the mediator is associated with shall not charge fees or

other charges in a manner that might reasonably raise a question about the mediator’s

impartiality.

1. A mediation fee agreement shall not be contingent on the outcome of the

mediation or the amount or other terms of any settlement.

2. A mediator or an organization that a mediator is associated with may accept

unequal fee payments from or on behalf of the parties if the fee arrangement is

disclosed to all parties and does not reasonably raise a question about the

mediator’s impartiality.

STANDARD IX. ADVANCEMENT OF MEDIATION PRACTICE

A. A mediator should advance the practice of mediation and may do this in many ways,

including:

1. Helping to create a more diverse community of mediators;

2. Striving to make mediation accessible, including by providing mediation services at

a reduced rate or without charge, when appropriate;

3. Participating in mediation research and evaluation, including by requesting

participant feedback, when appropriate;

4. Promoting public understanding and appreciation of mediation; and

5. Helping other mediators as appropriate, including through co-mediation,

observation, mentoring, and networking.

B. A mediator who believes that another mediator has acted inconsistently with these

Standards should consider discussing this with that mediator, in a manner consistent with

mediation confidentiality.

C. A mediator should engage in conversations about the practice of mediation in a respectful

manner and work with others to improve the profession and better serve people in

conflict.

D. A mediator should consider using mediation to address the mediator’s conflicts.