Editing Mediation (section)

==Mediators==

===Education and training===
The educational requirements for accreditation as a mediator differ between accrediting groups and from country to country. In some cases legislation mandates requirements; in others professional bodies impose accreditation standards. Many US universities offer graduate studies in mediation.

====Australia====
{{Main|Mediation in Australia}}
In [[Australia]], there are two educational standards. One for entry level mediators and another for professionals wanting to become Family Dispute Resolution Practitioners (Family Law Mediators).

* '''Australian Mediator and Dispute Resolution Accreditation Standards (AMDRAS)'''<ref name=":1">{{Cite web |title=Australian Mediator and Dispute Resolution Accreditation Standards Website |url=https://amdras.au }}</ref> replaced the National Mediator Accreditation System (NMAS) in 2024. The standards establish requirements for training, assessment, accreditation and ongoing professional practice.
* '''Family Dispute Resolution Practitioners (FDRPs)''' FDRPs must undertake a specific qualification CHC81115<ref>{{Cite web |title=Training.gov.au website |url=https://training.gov.au/Training/Details/CHC81115 |access-date=2025-01-18 |website=training.gov.au}}</ref> - Graduate Diploma of Family Dispute Resolution or if they meet other specific educational requirements such as a qualification in law, social work or psychology and the core units from the Graduate Diploma. An equivalent to the core units course is available from some higher education providers. The qualification is approximately 800 hours and requires a 50 hour work placement.  

Both levels of accreditation have requirements regarding ongoing professional development, professional indemnity insurance and good character. 

Not all kinds of mediation-work require academic qualifications, as some deal more with practical skills than with theoretical knowledge. Membership organizations can be recognised under AMDRAS to provide training courses.

Internationally a similar approach to the training of mediators is taken by organizations such as the [[Centre for Effective Dispute Resolution]], CEDR. Based in London, it has trained over 5000 CEDR mediators from different countries to date.<ref>{{Cite web |url=https://www.cedr.com/docslib/2009_Achievements_at_CEDR3.pdf |title=2009: Year of achievements by CEDR |access-date=18 September 2017 |archive-date=24 May 2019 |archive-url=https://web.archive.org/web/20190524124042/https://www.cedr.com/docslib/2009_Achievements_at_CEDR3.pdf |url-status=dead }}</ref>

No legislated national standards on the level of education apply to all practitioners' organizations. However, organizations such as the [[National Alternative Dispute Resolution Advisory Council]] (NADRAC) advocate for a wide scope on such issues. Other systems apply in other jurisdictions such as Germany, which advocates a higher level of educational qualification for practitioners of mediation.

=== Codes of conduct ===
[[File:Mediator-mediation.jpg|thumb|A 1904 illustration of a mediation scene from the [[Siege of Port Arthur]], wherein Japanese parliamentarians negotiate a [[ceasefire]] in order to allow the burial of the dead]]
Common elements of codes of conduct include:

* informing participants as to the process of mediation
* adopting a neutral stance
* revealing any potential conflicts of interest
* maintaining confidentiality within the bounds of the law
* mindfulness of the psychological and physical wellbeing of all participants
* directing participants to appropriate sources for legal advice
* engaging in ongoing training
* practising only in those fields in which they have expertise.

====Australia====
In Australia mediation codes of conduct are articulated in the AMDRAS<ref name=":1" /> which includes practice expectations and a code of conduct superseding the NMAS in 2025. 

A number of professional associations for mediators and law societies also have developed Codes of Conduct or similar. 

'''Europe'''

The CPR/Georgetown Ethics Commission, the Mediation Forum of the Union International des Avocats, and the [[European Commission]] have promulgated codes of conduct for mediators.

====Canada====
In Canada codes of conduct for mediators are set by professional organizations. In Ontario three distinct professional organizations maintain codes of conduct for mediators. The Family Dispute Resolution Institute of Ontario and the Ontario Association of Family Mediators set standards for their members who mediate family matters and the Alternative Dispute Resolution Institute of Ontario who sets standards for their members.

The Alternative Dispute Resolution Institute of Ontario, a regional affiliate of the Alternative Dispute Resolution Institute of Canada, uses the code of conduct from the federal organization to regulate the conduct of its members. The Code's three objectives are to provide guiding principles for the conduct of mediators; to promote confidence in mediation as a process for resolving disputes; and to provide protection for members of the public who use mediators who are members of the institute.<ref>{{cite web|last1=Wakely|first1=Dave|title=Mediator Codes of Conduct Canada|url=http://wakelymediation.com/2017/08/mediator-codes-conduct-canada/|website=Wakely Mediation|date=15 August 2017|access-date=16 August 2017}}</ref>

In British Columbia, Mediate BC Society sets and maintains Standards of Conduct for its Registered Roster Mediators (RRMs) and Associates and Standards of Conduct for Med-Arbitrators on its Med-Arb roster.<ref>{{Cite web |title=Standards of Conduct & Complaint Process {{!}} Mediate BC Home {{!}} Effective Conflict Resolution |url=https://www.mediatebc.com/for-mediators/standards-of-conduct |access-date=2022-04-06 |website=www.mediatebc.com |archive-date=20 January 2022 |archive-url=https://web.archive.org/web/20220120140120/https://www.mediatebc.com/for-mediators/standards-of-conduct |url-status=dead }}</ref> Mediate BC Society is a non-profit society that "serves and protects the public by promoting professionalism and quality in mediation and other collaborative dispute resolution processes."<ref>{{Cite web |title=Strategic Plan 2020–2023 {{!}} Mediate BC Home {{!}} Effective Conflict Resolution |url=https://www.mediatebc.com/about-us/strategic-plan-overview |access-date=2022-04-06 |website=www.mediatebc.com |archive-date=20 May 2022 |archive-url=https://web.archive.org/web/20220520164635/https://www.mediatebc.com/about-us/strategic-plan-overview |url-status=dead }}</ref>

====France====
In France, professional mediators have created an organization to develop a rational approach to conflict resolution. This approach is based on a "scientific" definition of a person and a conflict. These definitions help to develop a structured mediation process. Mediators have adopted a code of ethics which guarantees professionalism.<ref>Pratique de la médiation professionnelle, Jean-Louis Lascoux, ESF Sciences Humaines, 2001–2017.</ref><ref>Code de la Médiation pour l'orientation de la médiation, Agnès Tavel, Médiateurs Editeurs, 2009.</ref><ref>Dictionnaire encyclopédique de la Médiation au service de la qualité relationnelle et de l'Entente Sociale, Jean-Louis Lascoux, ESF Sciences Humaines, 2019.</ref>

====Germany====
In Germany, the process and responsibilities of a mediator are legally defined in the Mediation Act 2012 (''Mediationsgesetz'').<ref>{{Cite web |title=MediationsG - nichtamtliches Inhaltsverzeichnis |url=https://www.gesetze-im-internet.de/mediationsg/index.html |access-date=2024-09-08 |website=www.gesetze-im-internet.de}}</ref> The Act codifies the general process (facilitation by a neutral, 3rd-party mediator without evaluation or solution proposals) and specific terms (e.g. ''funktionaler Mediator''<ref>{{cite web |date=2015-04-27 |title=SIMK ADR news Funktionaler Mediator |url=http://steinberg-mediation-hannover.de/funktionaler-mediatorenbegriff/ |access-date=2017-07-02 |publisher=SIMK Hannover, Germany}}</ref>). Mediators have certain information and disclosure obligations as well as limitations of practice. In particular, a person who has previously provided any form of counseling to any party in the conflict (legal, social, financial, etc.) may not act as a mediator in the case.<ref>{{cite web|url=http://steinberg-mediation-hannover.de/vorbefassungsverbot/|title=SIMK ADR news Vorbefassungsverbot |publisher=SIMK Hannover, Germany|date=2015-10-01|access-date=2017-07-02}}</ref> The Act applies to practitioners even if they refer to their approach not as mediation, but facilitation (''Prozessbegleitung''), conciliation (''Schlichtung''), conflict counseling (''Konflikt-Beratung'') or anything else.

===Accreditation===

==== Australia ====
A range of organisations within Australia accredit mediators under the standards set by AMDRAS.<ref name=":1" /> 

The National Mediator Accreditation System (NMAS) commenced operation on 1 January 2008. It is an industry-based scheme which relies on voluntary compliance by mediator organisations that agree to accredit mediators in accordance with the requisite standards.<ref>{{cite web|url=http://www.nadrac.gov.au/www/nadrac/nadrac.nsf/Page/WhatisADR_NationalMediatorAccreditationSystem_NationalMediatorAccreditationSystem |title=NADRAC |publisher=NADRAC |date=2008-01-01 |access-date=2012-03-12}}</ref> It was replaced in 2024 - 2025 by the AMDRAS. 

Mediator organisations have varying ideals of what makes a good mediator which reflect the training and accreditation of that particular organisation but to be recognised as AMDRAS training they must comply to certain norms.   

==== Germany====
According to sec. 6 German Mediation Act the German government on June 21, 2016 has released the German regulation about education and training of the so-called (legal term) "certified mediators" which from Sept. 1, 2017 postulates a minimum of 120 hours of initial specialized mediator training as well as case supervision and further ongoing training of 40 hours within 4 years. Beyond this basic qualification, the leading mediation associations (BAFM, BM, BMWA and DGM) have agreed on quality standards higher than the minimum standards of the national regulation to certify their mediators. To become an accredited mediator of these associations one has to complete an accredited mediation training program of a minimum of 200 hours incl. 30 hours of supervision as well as ongoing training (30–40 hours within three years)."<ref>{{cite web|url=http://steinberg-mediation-hannover.de/ausbildungsverordnung-fuer-zertifizierte-mediatoren-erlassen//|title=SIMK ADR news Ausbildungsverordnung für Mediatoren|publisher=SIMK Hannover, Germany|date=2016-08-31|access-date=2017-07-02}}</ref>

===Selection===
{{Unreferenced section|date=October 2006}}

Mediator selection is of practical significance given varying models of mediation, mediators' discretion in structuring the process and the impact of the mediator's professional background and personal style on the result.

In community mediation programs the director generally assigns mediators. In New South Wales, for example, when the parties cannot agree on a mediator, the registrar contacts a nominating entity, such as the Bar Association which supplies the name of a qualified and experienced mediator.

As of 2006, formal mechanisms for objecting to the appointment of a particular mediator had not been established. Parties could ask the mediator to withdraw for reasons of [[conflict of interest]]. In some cases, legislation establishes criteria for mediators. 

The Australian Attorney Generals Department maintains a register of registered Family Dispute Resolution Practitioners and Government Funded FDR Services located at [https://fdrr.ag.gov.au/ www.fdrr.ag.gov.au] 

====Criteria====
The following are useful criteria for selecting a mediator:
* Personal attributes&mdash;patience, empathy, intelligence, optimism and flexibility
* Accreditation / Registration - In Australia - Registration as a FDRP for Family Law, Accreditation as a Mediator for other types of mediation 
* Qualifications&mdash;knowledge of the theory and practice of conflict, negotiation and mediation, mediation skills.
* Experience&mdash; mediation experience, experience in the substantive area of dispute and personal life experience
* Training
* Professional background
* Certification and its value
* Suitability of the mediation model
* Disclosure of potential Conflicts of Interest
* Cost/fee

====Third party nomination====
Contracts that specify mediation may also specify a third party to suggest or impose an individual. Some third parties simply maintain a list of approved individuals, while others train mediators. Lists may be "open" (any person willing and suitably qualified can join) or a "closed" panel (invitation only).

In the UK and internationally, lists are generally open, such as The [[Chartered Institute of Arbitrators]], the [[Centre for Effective Dispute Resolution]]. Alternatively, private panels co-exist and compete for appointments e.g., Savills Mediation.<ref>{{cite web|url=http://www.savills.co.uk/mediation |title=Savills Mediation |publisher=Savills.co.uk |access-date=2012-05-02}}</ref>

===Liability===
Legal liability may stem from a mediation. For example, a mediator could be liable for misleading the parties or for even inadvertently breaching confidentiality. Despite such risks, follow-on court action is quite uncommon. Only one case reached that stage in Australia as of 2006. Damage awards are generally compensatory in nature. Proper training is mediators' best protection.

Liability can arise for the mediator from Liability in Contract; Liability in Tort; and Liability for Breach of Fiduciary Obligations.

Liability in Contract arises if a mediator breaches (written or verbal) contract with one or more parties. The two forms of breach are ''failure to perform'' and ''anticipatory breach''. Limitations on liability include the requirement to show actual causation.

Liability in Tort arises if a mediator influences a party in any way (compromising the integrity of the decision), defames a party, breaches confidentiality, or most commonly, is negligent. To be awarded damages, the party must show actual damage, and must show that the mediator's actions (and not the party's actions) were the actual cause of the damage.

Liability for Breach of Fiduciary Obligations can occur if parties misconceive their relationship with a mediator as something other than neutrality. Since such liability relies on a misconception, court action is unlikely to succeed.

====Tapoohi v Lewenberg (Australia)====
As of 2008 Tapoohi v Lewenberg was the only case in Australia that set a precedent for mediators' liability.

The case involved two sisters who settled an estate via mediation. Only one sister attended the mediation in person: the other participated via telephone with her lawyers present. An agreement was executed. At the time it was orally expressed that before the final settlement, taxation advice should be sought as such a large transfer of property would trigger [[capital gain]]s taxes.

Tapoohi paid Lewenberg $1.4&nbsp;million in exchange for land. One year later, when Tapoohi realized that taxes were owed, she sued her sister, lawyers and the mediator based on the fact that the agreement was subject to further taxation advice.

The original agreement was verbal, without any formal agreement. Tapoohi, a lawyer herself, alleged that the mediator breached his contractual duty, given the lack of any formal agreement; and further alleged tortious breaches of his duty of care.

Although the court dismissed the summary judgment request, the case established that mediators owe a [[duty of care]] to parties and that parties can hold them liable for breaching that duty of care. Habersberger J held it "not beyond argument" that the mediator could be in breach of contractual and tortious duties. Such claims were required to be assessed at a trial court hearing.{{Clarify|date=May 2010}}

This case emphasized the need for formal mediation agreements, including clauses that limit mediators' liability.

====United States====
Within the United States, the laws governing mediation vary by state. Some states have clear expectations for certification, ethical standards and confidentiality. Some also exempt mediators from testifying in cases they've worked on. However, such laws only cover activity within the court system. Community and commercial mediators practising outside the court system may not have such legal protections. State laws regarding lawyers may differ widely from those that cover mediators. Professional mediators often consider the option of [[liability insurance]].