Colorado Now Has Model Standards of Conduct for Mediators

• Publication year: 2000
• Pages: 45
• Citation: Vol. 29 No. 6 Pg. 45

29 Colo.Law. 45 Colorado Lawyer 2000.

2000, June, Pg. 45. Colorado Now Has Model Standards of Conduct for Mediators

---

45

Vol. 29, No. 6, Pg. 45

The Colorado Lawyer
June 2000
Vol. 29, No. 6 [Page 45]

Specialty Law Columns
Alternative Dispute Resolution Column
Colorado Now Has Model Standards of Conduct for Mediators
by Sally Ortner, Merrill Shields

Statewide requirements or certification procedures for mediators or other alternative dispute resolution ("ADR") professionals currently do not exist However, several organizations have endorsed a set of standards called the Colorado Model Standards of Conduct for Mediators ("Standards of Conduct"). These organizations are the Colorado Bar Association ("CBA"), Colorado Judicial Institute ("CJI"), Colorado Department of Law ("DOL"), Colorado Council of Mediators and Mediation Organizations ("CCMO"), and the Office of Dispute Resolution of the Colorado Judicial Department

In the October 1997 issue of The Colorado Lawyer, the authors wrote an article tracing the existing statutory framework the development of guidelines for mediator education and training, and the history of the ADR Qualifications Project.1 The Project began when the CMMO invited the CBA, CJI, and Colorado DOL to co-sponsor an inquiry into the issue of establishing ADR professional qualifications. The proposed mission was "[t]o sponsor a public debate about the need for qualifications for the various ADR professionals; and, if appropriate, to identify the qualifications and design a system for their implementation, which may include a means for their enforcement." This article explains how the Standards of Conduct came into existence and how they can be implemented.

Creating the Standards Of Conduct

The Steering Committee, which was formed in 1996, had two representatives from each of the endorsing organizations.2 The Committee was concerned with ensuring competence and quality in dispute resolution practice, establishing standards of practice, and informing the public about and enforcing such standards. The Committee decided to use mediation as a model, with the idea that whatever was developed could be used for other ADR service providers as necessary or desired.

After discussions about "the worst consequences of a bad mediation," such as forfeiture of legal rights, denial of public access, unnecessarily limiting choice, and misuse of the fiduciary role, the Steering Committee realized that it needed concrete information about potential harm. To document the need for public protection, in the spring of 1997, the Committee decided to conduct a survey about mediation and qualifications for mediators and sought responses from consumers and attorneys.3 The Steering Committee was particularly interested in receiving information about concerns and problems encountered in the mediation process. The data-collection process assured survey participants that any information received identifying individuals involved in the mediation process would remain confidential.

After the survey was completed, the Steering Committee used the information to draft and submit a proposed licensure plan, including standards of conduct, and submitted the plan to the participating organizations. The Committee's recommendation for licensure used the mental health care licensee two-tiered system as a model because that system does not create entry barriers to the profession.

The licensure plan would have permitted anyone to enter the profession by registering and paying a fee. However, if applicants wished to obtain certification, they would have been required to demonstrate competency by satisfying educational and testing requirements. Under the Committee's proposed two-tiered licensure plan, all mediators, whether registered or certified, would have been required to follow standards of conduct. The proposed licensor plan included a revised draft of standards of conduct for mediators.

After the licensure proposal was submitted to and reviewed by the sponsoring organizations, each organization expressed different concerns. However, the consensus was that licensure at that time was not appropriate, but voluntary standards of conduct should exist. They also agreed that the standards of conduct in the licensure proposal needed further refinement.

The Steering Committee then circulated the proposed standards of conduct to interested parties for their review. The Committee asked members of the sponsoring organizations to serve on subcommittees to review the standards as they were drafted, as well as the written comments the Committee received. Each subcommittee was charged with revising specific sections of the standards, using written comments to explain why a revision was considered necessary. Each subcommittee's report was circulated to the other subcommittees for additional comments. Based on these reports and comments, the Committee prepared a final draft of the Standards of Conduct. In the fall of 1999, the sponsoring organizations approved the Standards of Conduct. These standards are intended for voluntary statewide use.

Explaining the Standards Of Conduct

One purpose of the Standards of Conduct (which are included as an Appendix to this article) is to give consumers consistent expectations regarding mediations conducted by...