Some of you, particularly those with children, no doubt remember “Pirates of the Caribbean“, a 2003 movie based upon a Disneyland theme park ride. In one scene, the movie’s heroine attempts to parley with the villainous pirate captain, invoking the protection of the Pirate Code, a kind of seafaring Model Rules of Professional Conduct. He sneers at her entreaties, dismissing the Code as “more what you’d call ‘guidelines’ than actual rules”.
That’s pretty much the state of affairs the mediation profession in the U.S. finds itself in with its own Model Standards of Conduct.
As mediators, we are all aware of the existence of standards of conduct that are meant to guide our practice. We speak with reverence – and in capital letters - of principles such as Informed Consent, Self-Determination, Impartiality. Most basic mediation training programs include some treatment of ethics: what principles guide practice, and how might mediators respond to specific ethical challenges.
Organizations like the Association for Conflict Resolution and the ABA Section on Dispute Resolution have drafted and approved such standards for their members. Private ADR providers have established rules for neutrals serving on their panels. Courts have promulgated them for neutrals serving in court-connected programs.
Although violation of these standards of conduct might cost you your membership card or result in your removal from a court-connected ADR panel, these standards are generally aspirational, as the preamble to the ABA/AAA/ACR Model Standards of Conduct for Mediators acknowledges:
These Standards, unless and until adopted by a court or other regulatory authority do not have the force of law.
The fact is that not one of these bodies of ethical standards regulates with the force of actual authority the conduct of mediators in private practice. They are, in the words of the pirate chief, more what you’d call guidelines.
Why do I point this out? So long as the private practice of mediation remains unregulated in the U.S., we must do our own policing. The state does not regulate us; we regulate ourselves. We each bear the responsibility of educating ourselves about our field’s best practices and conducting ourselves accordingly. And for those of us who train new mediators, we owe it to our profession to encourage those we mentor to strive with us to advance the field. Although principles such as competence and quality of practice may be aspirational only, at least for now, they are values that enhance our public standing.
Unlike the fictional pirates in Hollywood films, they have real-world impact.