The universal mediator’s code of ethics: utopia or reality?

Abstract

Background. The entry into force of the United Nations Convention on International Settlement Agreements Resulting from mediation (Singapore Convention) has given new impetus to discussions among scholars and practitioners on the content and essence of the concept of «standards for mediators or mediation procedures» (p. «E» Part 1 of Article 5 of the Singapore Convention), as well as the feasibility of agreeing on universal standards of mediation and professional conduct of the mediator.
The aim of the article is to determine the expediency of unification of ethical norms of professional conduct of a mediator at the international level.
Materials and methods. The normative base of the study consists of international treaties and UNCITRAL model laws, mediators’ codes of ethics, foreign legislation. The methodological basis of the conducted study were general scientific and special legal methods of cognition.
Results. The nature and essence of mediation as a flexible and informal method of dispute resolution determines the formulation of its ethical provisions mainly within the framework of «soft law» («codes of ethics of mediators», «mediation rules», «professional standards of mediators») mostly at the national or institutional level. Nevertheless, the gradual popularization of mediation in resolving international commercial disputes leads to discussions about the feasibility of formulating certain «global» codes of ethics for mediators.
The existence of various forms and content of codes of ethics for mediators, which are somewhat difficult to unambiguously interpret and evaluate for the non-mediator community, including judges, in particular when assessing the grounds for refusing to implement an international agreement on mediation, respectively to the provisions of paragraph «e» Part 1 of Art. 5 of the Singapore Convention.
Conclusion. The development and adoption of universal norms of professional ethics of mediation will obviously lead to heated discussions and debates in the mediation community, which always supports the flexibility of this procedure and the avoidance of formalization. However, in the conditions of legal uncertainty regarding the standards and norms of professional ethics of a mediator, the implementation of the idea of adopting a universal Code of Disclosure can be a good guide for the domestic mediation community. Moreover, the adoption of a certain universal standard of professional ethics of a mediator in the form of a Code of Disclosure will eliminate the problem of uncertainty for the judiciary in resolving the issue of lack or existence of grounds for refusing to implement international dispute settlement agreements under paragraph «e» of Part 1 of Art. 5 of the Singapore Convention. At the same time, the solution of this problem will clearly contribute to the further intensification of ratifications of the Singapore Convention and, as a consequence, the realization of the goals set during its development and signing.