Diligence

A duty to conduct mediation with diligence

From a professional ethics perspective, a mediator, like any role-holder worthy of his or her client's trust, must fulfill his role diligently in order to be worthy of the trust of parties to whom he or she is providing mediation services. The expectation of diligence complements the expectation of competence: it is not enough that a mediator is competent to exercise the role of a mediator; he or she must utilize his or her competence for the benefit of the parties at the right time and place, without undue delay. No reasonable mediation party would be satisfied with sloppy, long-delayed service, and any reasonable mediator can be taken to have made an implied representation or promise to supply careful service on time. This is a legitimate expectation of the mediation profession and the public, as well as the parties, because such conduct is necessary if mediators are to maintain the standing of the profession and process of mediation, and instill public trust in them. It is not surprising, then, that codes of conduct of various professions provide for a standard of diligence, whose content varies according to the nature and definition of the professional role they perform. Codes of conduct for mediators, however, do not usually include an independent standard of diligence, but provide for such a duty in other standards such as a Quality of the Process standard, Competence, Scheduling Mediation, and Rules of Fair Practice. These codes can shed some light on the meaning of diligent practice of mediators.

The meaning of diligence in mediation

Attention to the parties and their case

A mediator is expected to dedicate the time, resources, and attention required for the provision of high-quality service to the parties. The Georgia Standards, for example, provide under a heading of Diligence that “[m]ediators will exercise diligence in scheduling the mediation, drafting the agreement if requested to do so, and returning completed necessary paperwork to the court or referring agency.” Diligence here seems to refer to the duty of mediators to attend to their tasks – be it scheduling a session, drafting a mediated agreement, or returning paperwork – without delay. This duty applies to other routine tasks such as making telephone calls to parties and their representatives, reviewing documents, and writing down understandings.