On the Process of Mediation
In recent years there has been growing awareness of the promise inherent in the use of mediation processes in conflict resolution. The common method to resolve conflicts remains filing a claim with the court, but the legal system does not meet the caseload and thus encourages litigants to resort to mediation procedures outside the court, which offer disputants a cheaper, speedier, and more personal procedure than litigation.
The mediator's role is to help the parties negotiate, find solutions, and make decisions. The mediator is neither a judge nor an arbitrator. Unlike the judge and arbitrator, the mediator may meet with the parties separately, and help them identify options and develop solutions. However, he must maintain impartiality, help the sides reach an agreed solution, and avoid imposing one.
No Mediation Statute
Unlike licensed professions such as law and psychology, the practice of mediation in Israel requires no license. Court-connected mediators are subject to specific regulations which determine the qualifications and training they are required to have and the rules of conduct they must observe in conducting mediation. Persons who mediate cases not referred to them by the courts are not regulated by law.
Mediator Ethics
The ethics of mediators describes the rules of conduct expected of mediators in the performance of their duties. These rules derive from the relationship of trust between the mediator and the parties to mediation, and from the special relationships between the mediator, the profession of mediation and his colleagues, the public, the court (when the mediator is mediating a court-referred case), and the mediation center (when the mediator is mediating under the auspices of a mediation center).[1] These rules may also be influenced by legislation, case law, and ethical codes for mediators adopted by mediation organizations. In Israel there is no single code of ethics for mediators that applies formally to anyone involved in mediation.
Mediators in Court Referred Cases
Mediators who mediate cases referred to them by the court are obligated to act in accordance with the Courts (Mediation) Regulations, 5753-1993 (hereinafter: the Mediation Regulations), which constitute for them (without using that term) a code of ethics with legal validity.
Community Mediators
Mediators acting within the framework of a Community Mediation Center are obligated, by virtue of their choice to act within the framework of the Center, to act in accordance with the Center's rules. According to the decision of the Israeli Association of Mediation and Dialogue Centers and Gishurim Program, community mediators will honor the Code of Ethics for Mediators in Community Mediation and Dialogue Centers (2018) (hereinafter: the Code of Ethics for Community Mediators (2018). [2]
This code was adopted with the cooperation of the Community Mediation and Dialogue Centers in Israel, together with the Israeli Association of Mediation and Dialogue Centers, the Gishurim Program, and the Mediator Ethics Forum, which works alongside the Kiryat Ono Mediation and Conflict Resolution Center and Ono Academic College. The Code is based on the Code of Ethics for Mediators (2014) of the Kiryat Ono Mediation and Conflict Resolution Center, [3] Which was developed by the members of the Ethics Forum under the direction of Dr. Omer Shapira of Ono Academic College Faculty of Law, and the coordination of Carmela Zilberstein. The code builds upon and supplements the Mediation Regulations and does not detract from them.
Mediators (in Non-Court Cases) in the Private and Public Sectors
Mediators who mediate cases which are neither referred to them by a community mediation center nor a court may be obliged to follow a code of ethics adopted by them or by an organization of mediators to which they belong. For example, the Code of Ethics for Mediators of the Israeli Chamber of Mediators (2017) adopted and adapted to the needs of the Chamber’s members the Code of Ethics for Mediators (2014). The Organization of Israeli Mediators has also adopted a code of ethics for members of the organization.
However, the Code of Ethics for Community Mediators (2018) and the Code of Ethics for Mediators (2014) are based on comprehensive ethical and professional approaches and reflect the view of the Ethics Forum on the ethical norms applicable to mediators in general, whether they are private mediators, mediators in court cases or mediators in the community, mutatis mutandis. Accordingly, these codes were adapted by the Ethics Forum for mediators in the private and public sectors who do not mediate community or court cases, through the Code of Ethics for Mediators (2018). We appeal to mediators at large to adopt the Code of Ethics for Mediators (2018) and to submit ethical questions to the Mediator Ethical Forum.
Our goal is to raise awareness of the importance of ethical mediation practice. We believe that the more the users of mediation will be aware of their rights, and the more the mediators will be aware of their ethical obligations, the greater the quality and professionalism of mediation for the benefit of the public and the mediation profession will be. To this end, the Forum formulated the Charter of the Code of Ethics for Mediators and invites all mediators to join the Charter.
Answering Ethical Questions
The comprehensive ethical-professional approach of the Mediator Ethics Forum enables it to offer ethical guidance to mediators by applying the ethical norms of the Code of Ethics for Community Mediators (2018) and the Code of Ethics for Mediators (2018). The opinions of the Ethics Forum are sent to the applicant and then published for the benefit of the entire community of mediators and the general public, while preserving the anonymity of the applicant and the mediation parties.
A mediator who wishes to refer a question to the Mediator Ethics Forum can do so using the attached form.
[1] Omer Shapira, A Theory of A Theory of Mediators' Ethics: Foundations, Rationale, and Application 105-115 (Cambridge University Press, 2016); Omer Shapira and Carmela Zilberstein (eds.) Mediation Ethics: Ethical Codes and Coping with Dilemmas 18-27 (Magnes Press, 2018) [Hebrew]
[2] Id. at pp. 47-62.
[3] Id. at pp. 85-101.
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