Two major concerns that should be resolved before the implementation of mediation is to promote good governance in the mediation services and promote public confidence and trust in the process of mediation for the resolution of employment disputes and grievances.[1]
The basic ethics that a competent mediator should have can be thus summarised as follows:[2]
- Being responsive to both the concerns and the interest of the disputing parties
- Being rational and accountable throughout the process or session of mediation
- Exhibiting an attitude of professionalism and impartiality
- Trying to prevent conflict of interest at any point during the process of mediation
- Respecting the views and opinions of both the parties, and taking them into consideration at all times
- Keeping the procedure flexible to a certain extent in order to make the session comfortable and pleasant to the conflicting parties
- Maintaining privacy and confidentiality, and assuring the parties to the mediation of the same
- Ensuring that self-determination, i.e. coming to a voluntary and un-coerced decision or solution takes place.
The following obligations should be performed honestly and rightfully by the mediator:[3]
- Assisting the conflicting parties to identify the issues at hand;
- Making sure that communication happens to the fullest extent between the parties;
- Allowing parties to explore a variety of available alternatives;
- Facilitating the discussion in such a manner so as to enable the parties to reach voluntary and amicable agreements;
- Helping the parties to sustain good faith in employment relationships
Broad Ethics and obligations are as discussed:
Self-Determination
One of the fundamental principles which each mediator should encourage is self-determination. It involves coming to a voluntary, un-coerced and amicable decision in which each party makes choices freely and with mutually consent.
It is not possible for a mediator to personally make sure whether the decisions made by the parties are fully informed, however, it is the responsibility of the mediator to assure that the conflicting parties are made aware of the importance of consulting other appropriate professionals in order to make well-informed decisions.[4]
Reasonable efforts should be made by the mediator to assure that the conflicting parties understand the nature and functioning of the process of mediation, which include the discussion of issues and the available options.
In case, a party to the mediation cannot understand the functioning of the process, the mediator must make an attempt to limit the scope or amend the process in such a way, so as to make it consistent with the party’s ability to participate in it.
If it becomes apparent that the case at hand cannot be resolved through mediation, or if there is evidence of absence of willingness of either or both the parties to participate in the process, the mediator should always make the parties aware of other available options.
Unbiased Attitude and Impartiality
Throughout the session or process of mediation, mediators should not be biased or prejudiced in either his/her conduct or appearance or both, and should not exhibit any sort of favouritism towards either of the parties. In addition to this it is important for mediators to avoid any possibility of partiality or prejudice that may arise due to the economic or social background, appearance, personal character or even their conduct at the mediation session.[5]
A mediator should not accept gifts, loans, favours or any sort of material help from the parties to the mediation, as the same may raise a question with regard to the Mediator’s actual or perceived impartiality.
In cases where it is impossible for the mediator to conduct the session without being biased or partial, he/she should notify the same to the parties and not proceed with rendering his services as a mediator, even if the parties to the mediation do not object to the continuation of the Mediator in providing his/her services with regard to that very dispute.
Pre-existing Relations and Conflict of Interest
Prior to the starting of the process of Mediation, a competent mediator should disclose all the existing and possible points where a conflict of interest may arise. This disclosure must be made as soon as the mediator becomes aware of such interest or relationship.
The interests that ought to be disclosed by the mediator include any sort of pre-existing relationship or association with either or both the parties to the mediation, which may reasonably affect the impartiality or unbiased attitude of the mediator.[6]
After the mediator makes a disclosure to such effect, he/she may proceed, if there is a unanimous agreement between the parties that the conflict will not affect the discharge of the duties of the mediator, and the mediator is satisfied with regard to the same. However, if the mediator still believes that a conflict of interest may arise, then he/she should immediately discontinue the rendering of services, irrespective of the desire of the parties to the mediation.
Confidentiality
It is the responsibility of a competent mediator to maintain the confidentiality of the communications that are made or information that is exchanged between the parties, unless and until the parties to the mediation assent to it being let out of the room within which the session takes place.
The issues of confidentiality should be discussed with the parties to the mediation by the mediator before the starting of the session. It must include the expectations of the parties with regard to confidentiality, limitations on its scope and the extent to which it may be provided at the private sessions held with either of the parties. A contract may be signed with regard to the same.[7]
The mediator should also provide and promote the understanding of the parties with regard to the extent to which confidentiality of the information obtained in the process will be maintained. The mediator should also permit the parties to make their own rules with regard to confidentiality.
Any disclosure of information by the parties in their personal capacity to the mediator should not be disclosed by the mediator to the other parties.
However, a mediator may report, if the parties appeared at a scheduled mediation session, and if a solution was reached or not.
Exceptions to the principle of confidentiality include:[8]
- If consent is given by the parties;
- In cases of application of statutory obligations;
- If the mediator is required to prepare a report or a summary of the proceedings;
- If there exists reasonable grounds to believe that the disclosure of confidential information was necessary to prevent danger or any sort of harm;
- Information that does not point towards either or both the parties to the mediation, and is solely used for the purposes of research or evaluation. But such instances, at times, may require the consent of the parties.
Quality and fairness of the process
While conducting the proceedings, a mediator should always keep the qualities of industriousness, regularity, equal participation, fairness of procedure, competence of parties, honesty and mutual respect among the participants, in mind throughout the mediation session.
Willingness to achieve a high rate of settlement should not influence or affect a mediator’s conduct in any manner. In cases of a deadlock between parties, i.e. when parties do not seem to agree with each other at any point, and the mediator feels that further negotiation may help the parties reach a solution, he/she may push and encourage the parties to continue negotiating.
A mediator is duty bound not to misrepresent facts, details, information, circumstances, or anything else material to the case, knowingly, during the course of the mediation session.
The mediator should ensure that the sessions are held at times, when the parties to the mediation are able to attend it both physically and psychologically, and should postpone or cancel such sessions if the parties are unable to participate in the same. Apart from this, it is important for a mediator to take reasonable steps, in accordance with the principle of self-determination, to prevent abuse of the process of mediation.
If the mediator is assured that the following have taken place, he may refer a dispute with regard to employment to the Employment Relations Tribunal:
- Either or both the parties to the mediation have not acted in good faith;
- The proposed agreement or solution may result in the commission of an act, contrary to the provisions of law;
- There would be a possibility of the appearance of an impropriety if the process is continued;
- Continuation of the process can cause loss or harm to a party or a person, who is not a party to the mediation;
- There is an abuse of the process by either or both the parties to the mediation;
- The mediator can reasonably foresee that there is no possibility of settlement.
The conduct of the mediator should not be in such a manner that legitimate questions with regard to the integrity of the process may be raised.
Professional Development
Along with the discharge of duties, it is essential for a mediator to maintain professionalism throughout the course of the session of mediation.
Appropriate skill development and vocational training programmes for mediation to enhance and develop the knowledge and skills of the mediator must be conducted by The Permanent Secretary for Labour and Industrial Relations.[9]
Non Acceptance of Bribery or Favours
One of the most important ethics that every mediator should have is the non-acceptance of bribes in any situation or capacity from any person or party to the mediation who will be mediated by him/her. Such bribes may include monetary benefits, lunch, dinner, show or concert tickets, alcohol, drugs, sexual favours or gifts of any kind.
An acceptance of a bribe or favour by a mediator may lead to his suspension or an investigation by the Mediation Tribunal.
Mediated Settlement
When a dispute or conflict is resolved through mediation, a mediator should:
- Make sure that Parties to the settlement sign and agree to the terms of the settlement;
- Promote and endorse the terms and points on which the conflicting parties have agreed on.
The mediator should make sure that there was free and voluntary agreement to the terms of the settlement by both the parties.
[1]Alok Prasanna Kumar, Ameen Jauhar, Kritika Vohra and Ishani Tripathi, Strengthening Mediation in India, A Report on Court Connected Mediations, Vidhi: Centre for Legal Policy, 81912/2017/O/o US(NM&JR).
[2] Dr. Justice Dhananjaya Y. Chandrachud, MEDIATION– realizing the potential and designing implementation strategies, High Court of Bombay.
[3]Ibid.
[4]Ministry of Labour, Industrial Relations, Tourism & Environment, Code of Ethics for Mediators, 2007.
[5]Supra Note 1.
[6] Supra Note 2.
[7]Mohit Mokal, Mediation Advocacy in India, DOI: 10.13140/RG.2.2.15857.12647, available at: https://www.researchgate.net/publication/333729740_Mediator_Ethics_in_India (May, 2019).
[8] Ibid.
[9] Supra Note 7.
Authors – Tejas Hinder & Vipul Shukla
Year- 3rd Year
Institute – National Law Institute University, Bhopal