5 GENERAL PRINCIPLES
5.1 Impartiality and Conflicts of Interest
5.1.1 It is the duty of the mediator at all times to ensure that he or she acts with impartiality and that that impartiality is not compromised at any time by any conflict of interest, actual or capable of being perceived as such.
5.1.2 Mediators must not have any personal interest in the outcome of the mediation.
5.1.3 Mediators must not mediate in any case in which they have acquired or may acquire relevant information in any private or other professional capacity.
5.1.4 Mediators must not act or continue to act if they or a member of their firm has acted for any of the parties in issues not relating to the mediation.
5.1.5. Mediators must not accept referrals from any professional practice with whom they are employed, in partnership or contracted, on a full or part-time basis and which is involved in advising one of the participants on matters which relate or are capable of relating to the mediation, even though the practices are separate legal entities.
5.1.6 Mediators must not refer a participant for advice or for any other professional service to a professional practice with whom they are employed, in partnership or contracted, on a full or part-time basis on matters which relate or are capable of relating to the mediation even though the practices are separate legal entities.
5.1.7 Mediation must be conducted as an independent professional activity and must be distinguished from any other professional role in which the mediator may practise,
5.2 Voluntary Participation
Participation in mediation is voluntary at all times and participants and the mediator are always free to withdraw. Where mediators consider that a participant is unable or unwilling to take part in the process freely and fully, they must raise the issue and possibly suspend or terminate the mediation.
Mediators must remain neutral as to the outcome of a mediation at all times. Mediators must not seek to impose their preferred outcome on the participants or to influence them to adopt it, whether by attempting to predict the outcome of court proceedings or otherwise. However, if the participants consent, they may inform them that they consider that the resolutions they are considering might fall outside the parameters which a court might approve or order. They may inform participants of possible courses of action, their legal or other implications, and assist them to explore these, but must make it clear that they are not giving advice.
5.4.1 Mediators must at all times remain impartial as between the participants and conduct the mediation process in a fair and even-handed way.
5.4.2 Mediators must seek to prevent manipulative, threatening or intimidating behaviour by any participant. They must conduct the process in such a way as to redress, as far as possible, any imbalance of power between the participants. If such behaviour or any other imbalance seems likely to render the mediation unfair or ineffective, mediators must take appropriate steps to seek to prevent this including terminating the mediation if necessary.
5.5.1 Subject to paragraphs 5.5.3, 5.5.4 and 5.5.5 below mediators must not disclose any information about, or obtained in the course of, a mediation to anyone, including a court welfare officer or a court, without the express consent of each participant, an order of the court or where the law imposes an overriding obligation of disclosure on mediators.
5.5.2 Mediators must not discuss the mediation or correspond with any participant’s legal advisor without the express consent of each participant. Nothing must be said or written to the legal advisor of one party regarding the content of the discussions in mediation which is not also said or written to the legal advisor(s) of the other.
5.5.3. Where it appears necessary so that a specific allegation that a child has suffered significant harm may be properly investigated or where mediators suspect that a child is suffering or is likely to suffer significant harm, mediators must ensure that the relevant Social Services department is notified.
5.5.4 Mediators may notify the appropriate agency if they consider that other public policy considerations prevail, such as an adult suffering or likely to suffer significant harm.
5.5.5 Where mediators suspect that they may be required to make disclosure to the appropriate government authority under the Proceeds of Crime Act 2002 and/or relevant money laundering regulations, they must stop the mediation immediately without informing the clients of the reason.
5.6 Privilege and Legal Proceedings
5.6.1 Subject to paragraph 5.6.2 below, all discussions and negotiations in mediation must be conducted on a legally privileged basis. Before the mediation commences the participants must agree in writing that discussions and negotiations in mediation are not to be referred to in any legal proceedings, and that mediators cannot be required to give evidence or produce any notes or records made in the course of the mediation, unless all participants agree to waive the privilege or the law imposes upon mediators an overriding obligation of disclosure upon the mediator.
5.6.2 Participants must agree that all factual information material to financial issues must be provided on an open basis, so that it can be referred to in legal proceedings.
5.6.3 All information or correspondence provided by either participant should be shared openly and not withheld, except any address or telephone number or as the participants may agree otherwise.
5.6.4 Privilege will not apply in relation to communications indicating that a child or other person is suffering or likely to suffer significant harm, or where other public policy considerations prevail.
5.7 Welfare of children
5.7.1 At all times mediators must have special regard to the welfare of any children of the family. They should encourage participants to focus on the needs and interests of the children as well as on their own.
5.7.2 Mediators must encourage participants to consider the children’s wishes and feelings. If appropriate they may discuss with them whether and to what extent it is proper to consult the children directly in order to ascertain their wishes and feelings.
5.7.3 Where mediators and both participants agree that it is appropriate to consult any children directly, the consent of the children must first be obtained. Mediators consulting directly with any children must have been specifically trained to do so and have received specific enhanced clearance from the Criminal Records Bureau. Such mediators must provide appropriate facilities for direct consultation.
5.7.4 Where qualified mediators undertake direct consultation with any child, they must offer that child confidentiality as to any disclosure that that child may make to them. This must be explained to the participants before they agree to the direct consultation. Confidentiality in direct consultation with children must always be exercised subject to paragraphs 5.5.3, 5.5.4, 5.5.5, and 5.6.4 above.
5.7.5 Where mediators suspect that any child is suffering or likely to suffer significant harm, they must advise the participants to seek help from the appropriate agency. Mediators must also advise the participants that, in any event, they are obliged to report the matter to the appropriate agency in accordance with paragraph 5.5.3.
5.7.6 Where mediators consider that the participants are or are proposing to act in a manner likely to be seriously detrimental to the welfare of any child of the family or family member, they may withdraw from the mediation. The reason for doing this must be outlined in any further communication.
5.8 Abuse and power imbalances within the family
5.7.7 Mediators must be alert to the likelihood of power imbalances existing between the participants.
5.7.8 In all cases, mediators must seek to ensure that participants take part in the mediation willingly and without fear of violence or harm. They must seek to discover through a screening procedure whether or not there is fear of abuse or any other harm and whether or not it is alleged that any participant has been or is likely to be abusive towards another. Where abuse is alleged or suspected mediators must discuss whether a participant wishes to take part in mediation, and information about available support services should be provided.
5.7.9 Where mediation does take place, mediators must uphold throughout the principles of voluntary participation, fairness and safety and must conduct the process in accordance with this section. In addition, steps must be taken to ensure the safety of all participants on arrival and departure.
5.7.10 Mediators must seek to prevent manipulative, threatening or intimidating behaviour by either participant during the mediation.