N.M. ADR Guidelines for Court Connected Mediation Services

GUIDELINES FOR COURT-CONNECTED

MEDIATION SERVICES

GUIDELINE I. Introduction.

These Guidelines for Court-Connected Mediation Services (“Guidelines”) are intended to

assist the New Mexico Judiciary’s efforts to provide court-connected mediation serv ices. Because

each local court has uni que needs and limitations, these Guidelines may not be applicable i n all

courts and should not be considered mandatory directives. However, all courts and the

Administrative Office of the Courts are encouraged to impl ement the standards set forth below to

the fullest extent possible.

GUIDELINE II. Definitions.

For purposes of these Guidelines, the following definitions apply.

A. “Court-connected mediation services” means any service that provides mediation in

court cases and is created or administere d by a court or the Administrative Office of the Courts.

These services may be provided by a private entity to which a court refers a case for mediation, but

do not include mediation services that have not been ref erred by a court or arranged by the

Administrative Office of the Courts.

B. “Mediation” means a process in which a mediator

(1) facilitates communication and negotiation between mediation parties to assist

them in reaching a voluntary agreement regarding their dispute; or

(2) promotes reconciliation, settlement, or understan ding between and among

mediation parties.

C. “Mediation com munication” means a statement —whether oral, written, or

nonverbal—that occurs during a mediation or is made fo r purposes of considering, conducting,

participating in, initiating, continuing, or reconvening a mediation or retaining a mediator.

D. “Mediation party” means a person, who participates in a mediation and whose

agreement is necessary to resolve a dispute.

E. “Mediator” means an individual who is designated by a court or the Administrative

Office of the Courts as a mediator and who conducts a mediation.

F. “Non-party participant” means a person, other than a mediation party or mediator,

who is present and who may participate in the mediation. This definition may include a person who

is being consulted by a mediation party to assist with evaluating, considering, or generating offers of

settlement; who is an observer present to watch and listen to the mediation for educational or other

administrative purposes; or who is a mediation program administrator.

G. “Person” means an individual, corporation, business trust, estate, trust, partnership,

limited liability company, association, joint venture, govern ment or governmental subdivision,

agency or instrumentality, public corporation, or any other legal or commercial entity.

Comment

General

The definitions of “mediation,” “mediation communication,” “mediation party,” “mediator,”

“non-party participant ,” and “person” are derived from the Mediation Procedures Act (“MPA”),

NMSA 1978, §§ 44-7B-1 to -6.

The term “mediation” is broad. Throughout the nation the term encompasses many methods,

sometimes known as styles, for the practice of mediation. The range o f methodology includes

facilitative, evaluative, transformative, and other approaches, as well as combinations of

approaches. The format for mediation also has a wide range of possibilities, including joint session

based mediation, shuttle diplomacy, time limited dispute resolution sessions, and many more.

The definition of “mediation” in these Guidelines encompasses both mediation and

settlement facilitation, the terms commonly used in New Mexico to describe mediation services.

Although some view mediati on and settlement facilitation as different processes and formats, the

national consensus is that they both fall within the single term of “mediation.”

Referral by a judge or other court personnel

Paragraph A sets forth t he determining characteristic of court-connected mediation services,

which is a specific referral by a judge or other court personnel to a particular mediator. The referral

may be formal, as in a referral order, informal, as in a direction from the bench, or otherwise. The

dispositive question does not turn on who the mediator is, but rather on whether the parties are

acting in accordance with specific direction from a court. See also Guideline IV (Qualifications of

mediators).

Mediation participants

The people who may participate in mediation may have different roles. Paragraph D covers

those participants whose agreement is necessary to resolve a dispute. However, in court-connected

mediation services, the participants whose agreement is necessary may include the participants who

are formally listed as a party to the legal action and may include participants who are not parties to

the legal action. There are also participants whose agreement is not necessary, such as legal

representatives, subject matter consultants, and others. The Gu idelines address these different roles,

while providing that certain requirements, such as confidentiality, apply to every participant

regardless of role.

Mediation party

The definition of “mediation party” in Paragraph D is adapted from the definition of the

same term in the MPA. The definition is much broader than the standard legal definition of “party.”

See, e.g., Black’s Law Dictionary 1010 (5th ed. 1979) (“‘Party’ is a technical word having a precise

meaning in legal parlance; it refers to those by or against whom a legal suit is brought, whether in

law or in equity, the party plaintiff or defendant, whether composed of one or more individuals and

whether natural or legal persons; all others who may be affected by the suit, indirectly or

consequently, are perso ns interested but not parties.”); cf. Rule 1-004(B) NMRA (“ The summons

shall be substantially in the form approved by the Supreme Court and must contain: (1) the name of

the court in which the action is brought, the name of the county in which the complaint is filed, the

docket number of the case, the name of the first party on each side, with an appropriate indication of

the other parties, and the name of each party to whom the summons is directed; . . . .”).

Participants who are not parties to the legal action

The definitions of “mediation party” and “non-party participant,” in Paragraphs D and F

respectively, are adapted from the definitions of the same terms in the MPA. These terms originated

in the literature, such as the Uniform Mediati on Act, where the distinction between those parties

who are named in the caption of a legal action were not distinguished from those parties whose

agreement is necessary to resolve a dispute.

In some circumstances, the resolution of a dispute may require the participation in mediation

of persons not a party to the legal action to reach an agreement that will resolve the issues. Courts

and mediators may consider, under some circumstances, inviting these persons to participate in

mediation. These persons are therefore included in the definit ion set forth in Paragraph D of

“mediation party.”

In some circumstances, there may be participants in the mediation who are neither named in

the caption of a legal action, nor whose agreement is necessary to resolve a d ispute. These

participants are covered in Paragraph F as a “non-party participant,” and may include the following:

 Non-party participants may include attorneys, counselors, or advocates present at the request

of the named parties in accordance with Guideline III(C), below.

 If the mediation parties agree, courts may also provide for the presence of observers for

administrative or educational purposes. For instance, a court may provide for mentoring or

coaching of less-experienced mediators through attendan ce and observation of mediation

sessions, subject to the agreement of the mediation parties.

 Non-party participants should be bound by the confidentiality provisions set forth in

Guideline III(D), below. Non-party participants by defin ition are not b ound by the

mediation agreement, if any.

Because mediation party self-determination is the core value of court-connected mediation

services, the mediation parties have control of who is present during the mediation. Ideally,

mediation parties who want to include a non-party participant in the mediation will raise the

question with the other mediation parties and the mediator before the mediation sessi on.

Sometimes, however, a mediation party will simply bring a non-party to the mediation session

without prior disclosure or discussion. If the presence and participation of non-parties has not been

worked out in advance of mediation, reaching consensus on the presence and participation of non -

parties is one of the first issues to be addressed at the mediati on. If the mediation parties cannot

reach consensus as to the presence and participation of the non-parties, the objecting mediation

party ultimately has the right to opt out of the mediation.

In the case of observers, any mediation party may decline to have them present.

GUIDELINE III. General principles.

These Guidelines suggest minimum standards for all courts offering court-connected

mediation services. Nothing in these Guidelines is intended to preempt any Supreme Court rule that

addresses mediation or settlement facilitation.

A. Applicability. These Guidelines apply only to court-connected mediation services.

They are not intended to apply to settlement conferences held by judges or to mediations in which

disputants independently retain a private mediator.

B. Court-connected mediation services policies and procedures. Courts or the

Administrative Office of the Courts in offering court-connected mediation services should adopt

written policies and procedures consistent with these Guidelines for the implementation and conduct

of their programs.

C. Self-determination. In self-determination, the decision-making authority rests with

the mediation parties themselves. Self-determination is the core value of court-connected mediation

services.

(1) Courts may mandate referral to mediation, but should not require mediation

parties to settle. There should be no adverse response by courts to non-settlement by the mediation

parties. For that reason, mediation parties should be permitted to opt out of mediation at any time.

(2) A mediator should facilitate negotiations between mediation parties and assist

them in trying to reach a settlement, but should not have the authority to impose a settlement on the

mediation parties or to coerce them into settlement.

D. Confidentiality. Except as otherwise provided in the Mediation Procedures Act,

NMSA 1978, §§ 44-7B-1 to -6, or by applicable law, all mediation communications should be

deemed confidential, should not be subject to disclosure, and should not be used as evidence in any

proceeding. Mediators, mediation parties, and non-party participants should be bound by a rule of

confidentiality. Nothing in these Guidelines, however, should prevent the discovery or admissibility

of any evidence that is otherwise discoverable or admissible, merely because the evidence was

presented during a mediation.

E. Immunity of mediators. A mediator, as defined in these guidelines, should be

considered an arm of the court and as such should be immune from liabilit y for conduct within the

scope of the mediator’s appointment.

F. Access to court-connected mediation services. All litigants should have access to

court-connected mediation services without discrimination on the basis of race, ethnicity, color,

creed, ge nder, gender identity, sexual orientation, marital status, national origin, or physical or

mental ability.

G. Compliance with Language Access Plan. Court-connected mediation services and

information to the public, the bar, judges, and court personnel about these services should be

provided in a manner that complies with the court’s Language Access Plan.

H. Information. A court should provide information to the public, the bar, judges, and

court personnel about the availability and procedures of its court-connected mediation services.

Comment

General

These Guidelines set forth recommendations to courts for providing court-connected

mediation services. These Guidelines recognize that court-connected mediation services need to be

designed and implem ented in ways that accommodate local needs and circumstances while

maintaining consistently high quality.

Confidentiality

Courts should be certain that their court-connected mediation services comply with the

confidentiality requirements of the Mediation Procedures Act.

Domestic Relations Mediation

The Domestic Relations Mediation Act (DRMA), NMSA 1978, §§ 40-12-1 to -6, allows

courts to, among other things, establish domestic relations mediation programs. Rule 1-125 NMRA,

applies to court-connected m ediation services established under the DRMA. Where applicable,

these Guidelines complement Rule 1-125. Additional statutes address mediation in family cases. See

NMSA 1978, §§ 40-4-8(B), 40-4-9.1(G). These statutes direct courts to refer contested custody

cases to mediation “if feasible.”

Additional Service Areas and Fees

Courts are encouraged to be knowledgeable regarding the statutes and rules which will apply

to their specific program (s), including whether there is authority to assess fees to the use r(s) of the

service. For example, there are different statutes and rules which apply to Magistrate Courts and the

Metropolitan Court, and there are different statutes and rules which apply to fees for civil, domestic

relations, and other cases.

Standards

Courts are encouraged to exceed the minimum standards set forth in these Guidelines

whenever possible. When developing or modifying existing court-connected mediation services,

courts are encouraged to refer to various relevant national standards, inclu ding those set forth

below.

 The National Standards for Court-Connected Mediation Programs were developed in 1993

by the Center for Dispute Settlement in Washington, D.C., and the Institute of Judicial

Administration in New York City, through a grant from the State Justice Institute. The

National Standards are available at http://courtadr.org/files/NationalStandardsADR.pdf.

 The Model Standards of Practice for Family and Divorce Mediation were developed in 2000

by the Symposium of St andards of Practice and are available at: http://www.afccnet.org/

ResourceCenter/CenterforExcellenceinFamilyCourtPractice/ctl/ViewCommittee/CommitteeI

D/17/mid/495.

 The Model Standards of Conduct for Mediators (2005) were developed by the American

Arbitration Association, the American Bar Association’s Section of Dispute Resoluti on, and

the Associati on for Conflict Resolution and are available at: http://www.americanbar.org/

content/dam/aba/migrated/dispute/documents/model_standards_conduct_april2007.

GUIDELINE IV. Policies and procedures.

A. Minimum standards. Each court and the Administrative Office of the Courts, if

offering court-connected mediation services, should adopt written policies and procedu res for the

services and the qualifications of mediators. The policies and procedures should at a minimum

address the following:

(1) eligibility requirements for cases referable to mediation;

(2) referral procedures;

(3) mediator qualifications and assignment, including how mediators are selected

and how an assigned mediator may be replaced;

(4) payment of fees (if any) by the mediation parties, including provisions to

make mediation available regardless of the mediation parties’ ability to pay;

(5) collection of administrative data;

(6) management of grievances about the services or mediators;

(7) pre-mediation review of cases for capacity issues including domestic abuse;

(8) management of capacity issues —including issues ari sing from domestic

abuse—which are identified at any time during the court-connected mediation services; and

(9) opt-out procedures for legal parties and mediation parties who choose not to

participate in mediation.

B. Qualifications of mediators. Written policies and procedures should be developed

in the following areas to aid in ensuring that the mediators are qualified.

(1) Minimum qualifications. A mediator’s qualifications should be based on the

skills needed for the type of case. Differen t categories of cases may require different types and

levels of skills. Skills can be acquired through training and experience.

(2) Evaluation. To ensure that mediators’ performance is of con sistently high

quality, procedures should be established to evaluate the mediators’ performance.

(3) Professional development. A mediator should be required to participate in

educational programs and related activities to maintain and enhance the mediator’s knowledge and

skills related to mediation.

C. Disclosure of information from mediation.

(1) In general. Policies and procedures regarding mediation services

should not require disclosure of information from a mediation pursuant to Paragraph III(D).

(2) Exceptions. Notwithstanding Subparagraph (C)(1) of this Guideline,

disclosure may be required of information pursuant to the Mediation P rocedures Act, whether as an

exception stated in the Mediation Procedures Act or as an additional or different exception which is

created pursuant to an authorizing provision of the Mediation Procedures Act.

D. Supervision of court-connected mediation services. The court should designate a

particular person or persons to be responsible for administr ation of its court-connected mediation

services or to act as liaison with private, court-referred mediators.

Comment

General

This Guideline is intended to encourage courts to consider and determine how best to

address the listed items given the needs and resources of a particular court. It is not intended to

instruct courts on how to exercise their discretio n. For example, policies and procedures for child

custody court-connected mediation services in one district court may refer all divorce and parentage

cases involving minor children to court staff to develop custody and timesharing agreements.

Another district court might refer all such cases to private mediators for the same purpose. And yet

another district court might refer only cases in which the parents have filed a request for referral to

mediation.

Capacity to mediate

Subparagraph (A)(8), together with Guideline V(G), concerns the mediation parties’

capacity to mediate. Subparagraph (A)(8) of this Guideline encourages courts to consider capacity

issues when developing court-connected mediation servi ces. Guideline V(G) addresses mediators’

potential obligations regarding capacity issues that may be identified during mediation.

“Capacity” in its broadest sense refers to “the ability to understand the nature and effects of

one’s acts.” Black’s Law Dictionary 188 (5th ed. 1979). In mediation, capacity includes the ability

to understand and to participate in the mediat ion process. Capacity is therefore crucial to expression

of the core mediation value of mediation party self-determination. If mediation parties do not

understand the process, issues, or settlement options, or have difficulty participating in mediations,

their capacity to mediate, and by extension, their ability to make decisions in their own best

interests, are adversely affected.

 Mediation should only take place in cases, or regarding issues, where all mediation parties

have the capacity to exercise self-determination during the mediation process.

 The concept of capacity to mediate is neither intended to be a mental health diagnosis nor a

specific judicial finding.

 Capacity to mediate potentially implicates a wide array of impediments. For example, the

mediation process may be impeded by domestic abuse; neglect or abuse of a child; status as

a protected individual or vulnerable adult; mental illness, brain injuries, or other mental

impairment; and impairment from alcohol or other substances.

 Some forms of incapacity to mediate may be temporary, such as intoxication, and mediation

may be rescheduled for another time. Other forms of incap acity to mediate may be longer

term, such as mental illness, brain injury, or a history of domestic abuse, and may mean that

mediation should be avoided altogether.

 Assessment of a mediation party’s capacity to mediate is an on-going process in each case in

which both courts and mediators have a role.

Courts should recognize that cap acity issues may impact a mediation party’s ability to

exercise self-determination in the mediation process. They should consider whether and what kind

of pre-referral review should be performed, and how and whether mediation should proceed in each

case. States and mediation programs vary greatly in their approach to pre-referral review and may

decide, for instance, to adopt a wide range of options, including any of the practi ces or procedures

listed below. Courts should recognize that the range of options is extensive, and that continuing

advances in the field are causing best practices regarding capacity issues to evolve. Some options in

current use include:

 All cases should be reviewed prior to referral and throughout mediation.

 Only a certain type of case, e.g., domestic relations, shoul d be reviewed prior to a referral

and throughout mediation.

 When a review of the pleadings suggests a concern regarding capacity, a case would be

reviewed prior to referral and throughout mediation.

 When a mediation party is unrepresented by counsel, regardless of the type of case, the case

should be reviewed prior to referral and during mediation.

 The burden of informing the court and the mediator of capacity issues r ests entirely on a

mediation party, or the burden is a shared responsibility among the mediation parties, their

advisors, and the mediator and court.

 Review for capacity issues may be as rudimentary as an Odyssey search or a questionnaire

given to the legal parties and mediation parties, or as in-depth as a face to face meeting with

each person potentially participating in the mediation with the mediator or program staff.

Mediators should be trained to recognize capacity i ssues including domestic abuse so that

they can take appropriate action if such an issue appears during mediation.

Domestic abuse and capacity

“Domestic abuse” can be defined in a variety of ways. It can mean different things in

different contexts, and various statutes define it differently. The U.S. Department of Justice, Office

on Violence Against Women, defines domestic violence as follows:

[A] pattern of abusive behavior in any relationship that is used by one partner to gain

or maintain power and control over another intimate partner. Domestic violence can

be physical, sexual, emotional, economic, or psychological actions or threats of

actions that influence another person. This includes any behaviors that intimidate,

manipulate, humiliate, is olate, frighten, terrorize, coerce, threaten, blame, hurt,

injure, or wound someone.

http://www.ovw.usdoj.gov/domviolence.htm.

Although other issues may affect the capacity to mediate, domestic abuse is an issue

specifically identified in statutes or rules in New Mexico and in other states.

Some states by statute, court rule, or Supreme Court publication, either explicitly or

implicitly, require screening for domestic abuse.

 The Nebraska leg islature requires mediators to screen for enumerated capacity issues pr ior

to meeting with the parties. See Neb. Rev. Stat. § 43-2939 (2007).

 The New Mexico Legislature has prohibited mediation in child custody cases where “a party

asserts or it appears to the court that domestic violence or child abuse has occurred,” unless

certain enumerated conditions are met. NMSA 1978, § 40-4-8(B) (Emphasis added.)

 The Ohio Supreme Court requires that local mediation rule s include “[p] rocedures for

screening for domestic violence both before and during mediation.” Sup. R. 16(B)(1) (Rules

of Superintendence for the Courts of Ohio).

 Michigan Supreme Court’s Office of Dispute Resolution has authored a publication (revised

June 2014) entitled “ Domestic Violence Screening Protocol for Mediators of Domestic

Relations Conflicts.”

Courts also should be aware that there are many terms which are used to describe domestic

abuse or domestic violence. The following statutes provide some examples of other definitions:

 Family Violence Protection Act, NMSA 1978, § 40-13-2(D), (C);

 Crimes Against Household Members Act, NMSA 1978, §§ 30-3-10 t o -18 (enumerated

crimes);

 NMSA 1978, § 40-4-8; and

 Violence Against Women Act, 42 U.S.C. § 1392(a)(6).

Notably, domestic abuse may influence parties not only in family cases but also in such

seemingly unrelated cases as landlord-tenant or personal injury. For example, the injured party in a

personal injury case may be in a relationship where domestic violence is present, and the non-party

partner is controlling the injured party’s decisions regarding procedure of the case.

Courts may decide that cases involving domestic abuse or other capacity issues should not

be referred to mediation; they may decide to leave the door open to judicial discr etion in referral

decisions; or they may decide specific approaches to be used in handling a referral.

Screening for capacity issues

Screening for capacity to mediate is an evolving concept in the mediation field, and

development of screening protocol s and tools is on-going. At this time, some screening protocols

have been developed for domestic abuse, and additional protocols continue to emerge. Screening for

domestic abuse may enhance both the quality of court-connected mediation services provided a nd

the safety of mediation participants. The extent of screening will vary according to the nature of

each case and the resources available to a court. Screening alone, however, is insufficient; the

decisions made, based upon the screening results, are critical.

Some states, including Michigan, use screening in mediation to identify domestic abuse.

 The Michigan Supreme Court’s Domestic Violence Screening Prot ocol opens with the

following:

The purpose of this screening protocol is to protect the safety of mediation

participants and the integrity of the mediation process. The protocol is

designed to identify parties involved in divorce or child custody actions for

when mediation may be inappropriate because of domestic violence or child

abuse, and to maximize safety in the mediation process.

Michigan Supreme Court, State Court Administrative Office, Office of Dispute Resolution,

Domestic Violence Screening Protocol for Mediators of Domestic Relations Conflicts (June

2014), http://

courts.mi.gov/Administration/SCAO/Resources/Documents/standards/odr/Domestic%20Vio

lence%20Screening%20Protocol.pdf.

Some states, including New Mexico, have statutory language that can only be fulfilled with

sufficient screening:

 NMSA 1978, Section 40-4-8(B), directs that contested child custody cases be referred to

mediation,

if feasible unless a party asserts or it appears to the cour t that domestic

violence or child abuse has occurred, in which event the court shall halt or

suspend mediation unless the court specifically finds that:

(a) the following three conditions are satisfied: 1) the mediator

has substantial training concernin g the effects of domestic violence or child

abuse on victims; 2) a party who is or alleges to be the victim of domestic

violence is capable of negotiating with the other party in mediation, either

alone or with assistance, without suffering from an imbalan ce of power as a

result of the alleged domestic violence; and 3) the mediation process contains

appropriate provisions and conditions to protect against an imbalance of

power between the parties resulting from the alleged domestic violence or

child abuse; or

(b) in the case of domestic violence involving parents, the parent

who is or alleges to be the victim requests mediation and the mediator is

informed of the alleged domestic violence.

(Emphasis added.)

Opting out of mediation

Mediation party self-determination is the core value of court-connected mediation services.

For this reason, Guideline III(C) incorporates a strong opt-out provision to allow mediation parties

who do not feel comfortable going forward for any reason to opt out of the mediation rather than be

coerced into attending. Paragraph (A)(9) of this Guideline explicitly encourages courts to develop

procedures to allow mediation parties to opt-out of mediation.

Further, in light of Carlsbad Hotel Ass ociates, L.L.C. v. Patterson-UTI Drilling Company,

2009-NMCA-005, 145 N.M. 385, 199 P.3d. 288, good faith participation should not be required by

any court-connected mediation services.

In the event a court is considering whether and how to enforce an order to mediation, the

court should give careful consideration to the critical distinction between “objectively measurable

noncompliance” and a “subjective determination of bad faith.” See ABA Sec tion of Dispute

Resolution, Resolution on Good Faith Requirements for Mediators and Mediat ion Advocates in

Court-Mandated Mediation Programs (Aug. 7, 2004), http://www.abanet.org/dispute/

draftres2.doc.

Qualifications of mediators

Many states with rules governing court-connected mediation services require a minimum of

a 40-hour basic mediation training plus annual continuing education for mediators providing court -

connected mediation services. Given the limited availability of mediation training outside of Santa

Fe and Albuquerque, and the consequent shortage of trained mediators outside of Santa Fe and

Albuquerque, these Guidelines do not recommend specific training or recommend how courts

should qualify their mediators. Paragraph B of this Guideline, however, encourages courts to

consider the qualifications a mediator should have to competently mediate and whether

qualifications should be tailored for case type.

There presently is no single, commonly accepted body that certifies or establishes

qualifications or credentials for mediators

Professional development

Examples of professional development for mediators may include mentoring and

observation by skilled and experienced mediators, workshops, emailed “tips” and information,

roundtable discussions, advanced mediation trainin g, webinars, conference calls, email ‘list serves,’

participant surveys, books, and written articles.

Disclosure of information from mediation

In addition to the recommended limitations on the disclosure of information set forth in

Paragraph C of this Guideline, Guideline III(D) provides that mediation communications should be

deemed confidential, should not be subject to disclosure, and should not be used as evidence in any

proceeding. Further, court-connected mediation services are within the scope of the Mediation

Procedures Act. Courts should be certain that their court-connected mediation services comply with

the confidentiality requirements of the Mediation Procedures Act.

Supervision of court-connected mediation services

Designation of a specifi c person or persons to be responsible for administering the court-connected mediation services ensures consistency of application, thereby avoiding any appearance

of arbitrariness or capriciousness while still protecting the discretion of judges to refer o r not refer

cases to mediation.

GUIDELINE V. Ethical standards for mediators.

Each court and the Administrative Office of the Courts if offering court-connected

mediation services should adopt a set of ethical standards for mediators. The standards should at a

minimum address the issues set forth in this Guideline. Th e standards should apply only to

mediators who mediate in court-connected mediation services. Failure to comply with an obligation

or prohibition imposed by a standard may be a basis for removal of a mediator from a court roster.

These standards should not give rise to a cause of action for enforcement of these Guidelines or for

damages caused by alleged or perceived failure to comply with an obligation or prohibition imposed

by a standard set forth in these Guidelines.

A. Impartiality. Impartiality is at the heart of a mediator’s ethical responsibilities. A

mediator should maintain impartiality toward all mediation parties. Impartiality means freedom

from favoritism or bias either by appearance, word, or action, and a commitment to serve all

mediation parties as opposed to a single mediation party. At a minimum, a mediator should comply

with the following:

(1) a mediator should not accept or give a gift, request, favor, loan, o r any other

item of value to or from a mediation party or non-party participant involved in any pending or

scheduled mediation process, except that a mediator may accept payment of fees for court-connected mediation services; however, a mediator may accept or give de minimis gifts or

incidental items or services that are provided to facilitate a mediation or respect cultural norms so

long as such practices do not raise questions as to a mediator’s actual or perceived impartiality;

(2) a mediator should not use information disclosed during the mediation process

for private gain or advantage, nor should a mediator seek publicity from a mediation effort to

enhance the mediator’s position; and

(3) if at any time a mediator is unable to conduct a mediat ion in an impartial

manner, the mediator should withdraw.

B. Conflict of interest. A conflict of interest arises when any relationship between the

mediator and the mediation parties or non-party participants, or the subject matter of the dispute

compromises or appears to compromise the mediator’s impartiality. A mediator should refrain from

entering into or continuing in any dispute if he or she perceives that participation as a mediator

would be a conflict of interest or create an appearance of a con flict of interes t. A mediator should

avoid a conflict of interest or the appearance of a conflict of interest during and after a mediation.

(1) A mediator should disclose a known, significant relationship with any

mediation party or non-party particip ant involved in the mediation, whether the relationship is

current or past, or personal, professional, or pecuniary in nature. If a mediator has represented,

treated, or advised any mediation party or non-party participant in any capacity, the mediator should

disclose that professional relationship. A mediator should disclose any clear or potential conflict of

interest as soon as practical after the mediator becomes aware of it.

(2) After a mediator discloses a current or prior personal or professional

relationship or pertinent pecuniary interest, the mediation parties may choose to continue with the

mediator.

(3) The duty to disclose should be a continuing obligation throughout the

mediation process.

C. Representations by mediator. A mediator should not make inaccurate statements

about the mediation process, its costs and benefits, or the mediator’s qualifications, including the

following:

(1) a mediator should not make claims of specific results or promises which

imply favor of one mediation party over another;

(2) a mediator should not offer any promises about the outcome of a mediation in

a communication, including on a business card, stationery, or in a computer-based communication;

(3) a mediator should refrain from promises and guarantees of results and should

not advertise statistical settlement data or settlement rates; and

(4) a mediator should accurately represent her or his qualifications. A mediator

should only claim to meet the mediator qualifications of a governmen tal entity or private

organization if that entity or organization has a recognized procedure for qualifying mediators and it

specifically grants such status to the mediator.

D. Disclosure of Fees. When costs and fees are paid by the mediation parties directly

to the mediator, the mediator should provide written information to the mediation parties that

includes costs, fees, and time and manner of payment. The mediation parties and the mediator

should enter into a written agreement that describes costs, fees, and time and manner of payment

before beginning the mediation —even if the mediator’s fees are set by court order. The assessment

of fees should comply with the following:

(1) no commissions, rebates, or other similar forms of remuneration should be

given or received by a mediator for the referral of clients; and

(2) fees should not be based on the outcome of the mediation. A mediator should

not enter into a fee agreement which is contingent upon the result of the mediation or the amount of

the settlement.

E. Confidentiality. Mediators for court-connected mediation services should comply

with the confidentiality requirements of the Mediation Procedures Act.

F. Role of mediator.

(1) A mediator should not make decisions for the mediation parties. At no time

and in no way should a mediator coerce any mediation party into an agreement or make a

substantive decision for any mediation party. Depending on the mediation model being utilized, a

mediator may make suggestions for the mediation parties’ consideration, but all decisions should be

made voluntarily by the mediation parties themselves.

(2) The role of a mediator differs substantially from other professional roles.

Mixing the role of a mediator and the role of another profe ssion is problematic and should be

avoided.

(3) A clear, complete, written documentation of any agreements made by the

mediation parties during mediation is a beneficial service a mediator may offer. If the court requires

or the mediation parties request, a mediator may documen t any agreements made by the mediation

parties. Such documentation may be on forms approved by the court, where such forms are

available. In documenting an agreement a mediator should be aware of the limitations imposed on

the process by the unauthorized practice of law requirements, any applicable ethical requirements,

and any other applicable requirements.

(4) If the mediation parties are not represented by counsel at the mediation, the

mediator should afford them the opportu nity for review of any agreement by an independent

attorney or other consultant before it is signed.

G. Capacity to mediate.

(1) If a mediation party appears to have difficulty comprehending the process,

issues, or settlement options, or difficulty participating in a mediation, the mediator should explore

the circumstances and potential accommodations, modifications, or adjustments that would make

possible the mediation party’s capacity to comprehend, participate, and exercise self-determination.

(2) If a mediator is made aware of domestic abuse or violence among the

mediation parties or non-party participants, the mediator should take appropriate steps including, if

necessary, postponing, withdrawing from, or terminating the mediation.

Comment

This Guideline draws from the sources set forth below, as well as from provisions in New Mexico

statutes and mediator ethical codes from other states. Standard 8.1 of t he National Standards

for Court-Connected Mediation Programs provides: “Courts shou ld adopt a code of ethical

standards for mediators, together with procedures to handle violations of the code.” The

Commentary to Standard 8.1 elaborates: “In creating a code of ethics, courts should consider the

dual purposes of such a code: the promotion of honesty, integrity and impartiality in mediation, and

the effective ope ration of a mediation program. . . . Each court should consider existing standar ds

when drafting its code.” After reference to many codes of ethics adopted by courts and

professional associations throughout the country, Standard 8.1 concludes that any set of standards

for mediators should address the following six areas: impartiality, conflict of interest, advertising by

mediators, disclosure of fees, confidentiality, and role of mediators in settlement.

The Model Standards of Conduct for Mediators set forth standards in nine areas, including

self-determination, impartiality, conflicts of interest, competence, confidentiality, quality of the

process, advertising and solicitation, fees and other charges, and advancement of mediation practice.

The Model Standards of Practice for Family and Divorce Mediation provide standards

addressing self-determination, qualifications of mediators, impartiality, fees, confidentiality,

advertising, competence, and several other standards relating to the quality of proc ess and families

in particular.