Mediation rules help guide a process of mediation, whether between divorcing spouses, parties in a trademark infringement case, or a student body and its administration. Common mediation rules guide the responsibilities and limitations of the mediator, as well as ground rules for mediation sessions. There may be some legal mediation rules that guide mediation through a court system, but these can vary extensively depending on jurisdiction and the type of case.
The role of the mediator is typically defined by common mediation rules. In general, a mediator should be well-trained and qualified to serve in his or her position, and should be free from any personal or business ties that may affect his or her neutrality. The neutrality of the mediator is a key point to successful mediation; unless all involved parties believe that the mediator is willing and able to act objectively, they may be likewise unwilling to act in good faith. Some mediation laws and rules also restrict the mediator's role to solely a negotiating position; mediators do not have the right to impose a settlement, and are generally not legally responsible for the decisions of the parties involved.
Two important mediation rules are good faith and voluntary participation. A mediation is intended to be a peaceful alternative to legal proceedings or severe measures, such as walkouts or strikes. In order to have a chance of being productive, parties must choose to come to the table, rather than be forced. If one party is unwilling to negotiate, yet forced to attend, the mediation process may be worthless. The “good faith” rule demands that parties not only come voluntarily, but with an honest desire to see the matter settled.
Most mediation rules include at least some guarantee of confidentiality. One of the reasons mediation may be preferable to a court case is that proceeding are generally conducted behind closed doors, and neither the mediator nor the parties is at liberty to disclose the proceedings. One exception to the confidentiality clause is if illegal activity is disclosed, or if the mediator or other parties believe that disclosures may affect a child's safety. In this case, the mediator may be legally obligated to inform authorities.
In divorce, custody, or other contentious proceedings, some mediation rules may guide the flow and tone of the meeting. Participants are sometimes asked to use the other party's name, speak politely, and refrain from yelling, swearing, or making ultimatums. Some rules suggest thinking of the process as a business negotiation where professionalism is required. Rules also frequently ask the participants to refrain from discussing different viewpoints on past events, but to speak only about the negotiation on the table.
