Are You Looking for "Your Rights in Mediation"?
Are You Looking for "Your Rights in Mediation"?
Over two hundred bar association leaders, mediation program directors, mediators, university deans and professors, and interested organizations have signed requests titled "Your Rights in Mediation - Model Public Policy" (dated 9/25/95). The signers declared their belief that participants in mediation are entitled to these five basic rights, and requested that any proposed laws or regulations maintain these rights. Following below are 1) Your Rights in Mediation, 2) a partial list of requesters, and 3) examples of how these rights can be protected by statute.
Please copy and distribute this request.
For more information, please contact ronkelly@igc.org
To go to Ron Kelly's Home Page, please click here.
We believe that people who participate in mediation are entitled to these rights:
1. Voluntary Process Without Prejudice. The resolution of a dispute is best achieved in a voluntary process. People should be free to choose voluntary mediation, and be free to withdraw from mandatory mediation, without prejudice to their rights or their other methods of obtaining justice.
2. Confidential Process. It is essential that mediation participants be free to speak truthfully, without fear that their own words could be used against them later in an adversarial process.
3. Informed Consent. Participants must retain their rights to informed consent in all aspects of the mediation process. Disputants are entitled to full disclosure by their mediator of any conflicts of interest. Any agreements made in mediation, especially those waiving claims, must have the informed consent of the parties to be enforceable.
4. Free Choice of Neutrals. Mediators help people agree to settle disputes on their own terms. They don't write findings deciding who's wrong, like arbitrators. People with disputes have the right to jointly select any neutral person or organization to mediate for them. No specific degree or license should be either required or barred, for a person to serve as a mediator.
5. Full and Equal Access. Early voluntary resolution of conflict is both cost-efficient and most consistent with democratic values. Mediation enables people to retain their own decision-making power. It is appropriate for government to promote the informed use of mediation, and to ensure full and equal access to mediation services.
We request that these rights be maintained in any proposed laws or regulations.
Signature Date
Please Print Name and Organizational Affiliation
Please Strike One: Signing as Authorized Representative OR For I.D. Purposes Only
Address Phone
Please mail your signed statement to 2731 Webster St. Berkeley, CA 94705 or fax to 510-843-4439
Please copy and distribute this request. Prepared 6/22/93, revised 9/25/95, by Ron Kelly, Mediator, Phone: 510-843-6074 Email: ronkelly@igc.org
Background. This set of proposed rights has been referred to as the "Mediation Bill of Rights". It's aimed at public policy makers, practitioners, trainers, and educators concerned about the long-term integrity of the field. It provides a starting point for those who believe in mediation - those who want to make sure that mediation is not reduced to an efficient way of cheating people out of their rights with coerced settlements written in secret back-room proceedings. Its provisions have helped guide the formation of responsible law, regulation, and court rules in California and elsewhere. It has been used as a basis for ethics codes and organizational principles. It was authored and circulated by Ron Kelly, Mediator (510-843-6074) and may be copied for noncommercial purposes.
Model Public Policy on Mediation Rights
Partial List of Those Signing Requests
Following are some of the two hundred bar association leaders, mediation program directors, mediators, university deans and professors, and interested organizations who signed requests titled Your Rights in Mediation - Model Public Policy. They have declared their belief that participants in mediation are entitled to five basic rights, and requested that any proposed laws or regulations maintain these rights.
Mr. Terry Amsler, Executive Director, Community Boards Program, San Francisco*
Prof. Lani Bader, Dean Emeritus, Golden Gate University Law School, San Francisco
Ms. Maxine Baker-Jackson, Past President, Southern California Mediation Assn., Los Angeles
Dr. Joelle Bailard, Institute for Multicultural Conflict Resolution, Santa Monica
Mr. Robert C. Barrett, Mediator, Menlo Park
Ms. Jody Ann Becker, Program Director, Marin County Mediation Services, San Rafael
Ms. Ellen Beilock, Co-Chair, Alameda County Bar Assoc. ADR Committee, Oakland
Mr. John A. Bellas, Chair, National Mediation Awareness Campaign, San Francisco
Mr. Lee Jay Berman, President, Mediation Alliance, Santa Monica
Mr. John Blackman, Chair, San Mateo County Bar Association ADR Committee, San Mateo
Mr. Norman Brand, Past Regional Chair, National Academy of Arbitrators/NorCal, S.F.
Ms. Laura Bresler, Executive Director, Berkeley Dispute Resolution Service, Berkeley
Ms. Pat Brown, Executive Director, Peninsula Conflict Resolution Services, San Mateo
Prof. Donald L. Carper, California State University, Sacramento
Mr. Richard Chernick, Past President, Los Angeles County Bar Association, Los Angeles
Ms. Marcia Choo, Director, Asian Pacific American Dispute Resolution Center, Los Angeles*
Ms. Jeanie Class, Coordinator, Santa Barbara Community Mediation Center, Santa Barbara*
Mr. Michael T. Connell, Vice President, The Bank of California, N.A., San Francisco
Mr. Steven Davis, President, Alternative Resolution Centers, Los Angeles
Prof. Duane Dove, Sonoma State University, Rohnert Park
Judge Roderic Duncan, Alameda County Superior Court, Oakland
Ms. Melanie Farone, Executive Director, Mediation Center of the North Valley, Chico
Dr. Robert Fellmeth, Director, Center for Public Interest Law, San Diego
Mr. John J. Fitzpatrick, Senior Counsel, Chevron Corporation, San Francisco
Ms. Mari J. Frank, Past Chair, State Bar ADR Coordinating Committee, Laguna Niguel
Ms. Suzana Gal, Program Director, Project Sentinel Housing Mediation Program, Sunnyvale
Ms. Patricia Gaskell, Napa County Counsel-Small Claims Advisor, Napa*
Mr. Jonathan Gross, Co-President, Society of Professionals in Dispute Resolution/NorCal, S.F.
Mr. Steven Haberfeld, Director, Indian Dispute Resolution Services, Sacramento*
Ms. Nancy Halloran, Executive Director, Conflict Resolution Program, Santa Cruz*
Mr. John Helie, Director, ConflictNet, San Francisco
Prof. Joe H. Henderson, Dean, Empire School of Law, Santa Rosa
Mr. Armen J. Janzen, The Janzen Group, Hillsborough*
Ms. Diane Jeronimo, Executive Director, Center for Community Dispute Resolution, Livermore*
Mr. R. Michael Kasperzak, Chair, Santa Clara County Bar Mediation Committee, San Jose
Ms. Lorelei Kelly, Research Fellow, Stanford Center on Conflict and Negotiation, Stanford*
Ms. Lorle Kennedy, Director, Dispute Resolution Program, JFK University, Orinda
Mr. Jeff Krivis, President-Elect, Southern California Mediation Association, Los Angeles
Ms. Mimi E. Lyster, Executive Director, Center for Settlement Services, Mammoth Lakes
Ms. Pat Malberg, Director, Placer Dispute Resolution Services, Auburn*
Mr. John Marchant, Co-Chair, Alameda County Bar Assoc. ADR Committee, Oakland
Ms. Nina Meierding, Director, Mediation Center for Family Law, Ventura
Prof. Robert Miller, Legal Studies Div., College of the Redwoods, Ferndale
Mr. David A. Mulford, Senior Counsel, Bechtel Corporation, San Francisco
Ms. Ana Navaro, Coordinator, San Mateo County Mediation Program, Belmont
Mr. Burke Nicholson, Chairman, Northern California Drywallers Association, Fremont
Mr. Cliff Palefsky, Attorney at Law, San Francisco
Mr. Jerry Parker, San Diego City Attorney's Office of Dispute Resolution, San Diego
Mr. Jerry Pearson ,Executive Director, Claremont Dispute Resolution Center, Claremont
Ms. Dana Curtis Peterson, Mediator, U.S. Court of Appeals, Ninth Circuit, San Francisco
Mr. Steve Rosenberg, Chair, Marin County Bar ADR Committee, Mill Valley
Dr. Jacqueline L. Ryle, Dispute Settlement Center, Better Business Bureau, Fresno*
Mr. Chip Sharpe, Board Chair, Humboldt Mediation Services, Arcata*
Ms. Valerie Sopher, Past Chair, Alameda County Bar Assoc. ADR Committee, Oakland
Mr. Jerry Spolter, Co-Chair, Bar Association of San Francisco Mediation Committee, S.F.
Ms. Jeanne F. Stott, Small Claims Legal Advisor, S.F. Municipal Court, San Francisco
Mr. Daniel K. Steussy, President, Optera, Inc., San Diego
Dr. Elizabeth Watson, Director, CRED, Humboldt State University, Arcata*
Mr. Ian Walke, Director, Pacific Network for Dispute Resolution, Coarsegold*
Ms. Dianne Walker, Co-President, Society of Professionals in Dispute Resolution/NorCal, S.F.
Mr. Buzz Weisenfeld, Senior Mediator, JAMS/Endispute, Sacramento
Mr. John J. Welch, Former General Counsel, JAMS/Endispute, San Francisco
Mr. Dennis B. Westbrook, Director, Martin Luther King Dispute Resolution Center, L.A.
Mr. Timothy Wise, Past President, Northern California Mediation Association, Oakland
Ms. Claudia Young, Executive Director, Ventura Center for Dispute Settlement, Ventura*
(affiliation is provided for identification purposes only, unless marked by asterisk indicating that organization also joins in this request)
Prepared 8/22/96 by Ron Kelly, Mediator. (510-843-6074)
Your Rights in Mediation
Five Rights Request, SPIDR Model Standards, and Sample State Laws Five Rights Request. Over two hundred bar association leaders, mediation program directors, mediators, university deans and professors, and interested organizations have signed requests titled "Your Rights in Mediation - Model Public Policy" (dated 9/25/95). The signers declared their belief that participants in mediation are entitled to these five basic rights, and requested that any proposed laws or regulations maintain these rights. The five rights from this request are the numbered statements below (copies available: 510-843-6074).
National Model Standards. Supporting quotes from the national model standards for the ethical conduct of mediation follow each requested right. These standards were jointly developed, and adopted nationally, by the Society of Professionals in Dispute Resolution, and the Litigation Section and the Dispute Resolution Section of the American Bar Association, and the American Arbitration Association (copies available from SPIDR: 202-783-7277).
Sample Laws. Examples follow of statutes enacted in California which are consistent with these rights and standards.
1. Voluntary Process Without Prejudice. The resolution of a dispute is best achieved in a voluntary process. People should be free to choose voluntary mediation, and be free to withdraw from mandatory mediation, without prejudice to their rights or other methods of obtaining justice.
National Model Standards. "Self determination is the fundamental principle of mediation. It requires that the mediation process rely upon the ability of the parties to reach a voluntary, uncoerced agreement. Any party may withdraw from mediation at any time." (M.S. 1)
California Law. "In the event that the parties to mediation are unable to reach a mutually acceptable agreement and any party to the mediation wishes to terminate the mediation, then the mediator shall file a statement of nonagreement." (C.C.P 1775.9) "Any reference to a mediation during any subsequent trial is an irregularity in the proceedings..." [grounds for a mistrial] (Evidence Code 1128) (Please also see next section.)
2. Confidential Process. It is essential that mediation participants be free to speak truthfully, without fear that their own words could be used against them later in an adversarial process.
National Model Standards. "The mediator shall not disclose any matter that a party expects to be confidential unless given permission by all parties or unless required by law or other public policy." (M.S. 5)
California Law. "... all communications ... by and between participants or mediators in the course of a mediation or a mediation consultation shall remain confidential ..." (Evidence Code 1119) "... no mediator, shall be competent to testify, in any subsequent civil proceeding ..." (Evidence Code 703.5) "Neither a mediator nor anyone else may submit to a court or other adjudicative body...any report, assessment, evaluation, recommendation, or finding of any kind by the mediator...unless all parties to the mediation expressly agree otherwise in writing..." (Evidence Code 1121)
3. Informed Consent. Participants must retain their rights to informed consent in all aspects of the mediation process. Disputants are entitled to full disclosure by their mediator of any conflicts of interest. Any agreements made in mediation, especially those waiving claims, must have the informed consent of the parties to be enforceable.
National Model Standards. "The parties decide when and under what conditions they will reach an agreement or terminate a mediation." (M.S. 6) "The mediator has a responsibility to disclose all actual and potential conflicts ..." (M.S. 3) "A mediator cannot personally ensure that each party has made a fully informed choice...but it is good practice...to help them make informed decisions." (comment to M.S. 1)
California Law. "Mediation means a process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement." (Evidence Code 1115) "If the parties agree to a settlement agreement [in mediation], the insured will have three business days to rescind the agreement." (Ins. Code 10089.82) "An apparent consent is not real or free when obtained through duress, menace, fraud, undue influence, or mistake." (Civil Code 1567)
4. Free Choice of Neutrals. Mediators help people agree to settle disputes on their own terms. They do not write findings deciding who is wrong, like arbitrators. People with disputes have the right to jointly select any neutral person or organization to mediate for them. No specific degree or license should be either required or barred, for a person to serve as a mediator.
National Model Standards. "Any person may be selected as a mediator, provided that the parties are satisfied with the mediator's qualifications." (M.S. 4)
California Law. "The method of selection and qualification of the mediator shall be as the parties determine." (C.C.P. 1775.6)
5. Full and Equal Access. Early voluntary resolution of conflict is both cost-efficient and most consistent with democratic values. Mediation enables people to retain their own decision making power. It is appropriate for government to promote the informed use of mediation, and to ensure full and equal access to mediation services.
National Model Standards. "Self-determination: a mediator shall recognize that mediation is based on the principles of self-determination by the parties." (M.S. 1) "Mediators...have an obligation to help educate the public about mediation...[and] to make mediation accessible to those who would like to use it..." (comment to M.S. 9)
California Law. California has actively promoted the use of mediation and access to mediation services through all the code sections cited above, and through B.&P. 467 et seq (community mediation programs), C.C.P. 1297 et seq (international commercial mediation), Food&Agric.C. 54453 et seq (agricultural bargaining mediation), Gov.C. 11420 et seq (administrative agency mediation), Gov.C. 12984 et seq (housing mediation), Gov.C. 66032 et seq (land use mediation), Ins.C. 10089.7 et seq (earthquake insurance coverage mediation), Labor Code 65 et seq (labor dispute mediation), Fam.C. 1818 and 3177 et seq (family mediation), Welf&Inst.C. 350 et seq (dependency mediation), and many other laws.
Prepared 8/26/96, revised 11/5/98 by Ron Kelly, Mediator. Phone: 510-843-6074 Fax: 510-843-4439
Email: ronkelly@igc.apc.org May Be Reprinted for Personal Noncommercial Use.
Copyright 1998 Ron Kelly. All rights reserved. Original content and all HTML encoding at this site are registered with the U.S. Register of Copyrights. Unauthorized commercial use is a federal crime. You may use the contents for your own personal noncommercial use. For permission to copy in any form, or to display or use for any commercial purpose, please contact Ron Kelly at 510-843-6074.