We have already discussed this subject during the presentation of mediation.
Does a mediator show professionalism if he puts an end to a mediation process for reasons of “morality” according to “his own opinion”?
Maybe another mediator, with other values and therefore another "opinion" - even "detached" as must be a professional, would not have stopped the mediation. How should we perceive this "claiming viewpoint" which depends on an individual’s privacy? What might be the consequences - for the parties in mediation and legally - in case of implementation of this "opinion"?
Therefore should we consider that a mediator putting an end to a mediation process should stop practicing? Is that better or worse than to forward the message to the parties in conflict that their situation can not be surpassed (in mediation) and should be refereed (by the judge)?
Should not this "personal opinion", claimed as an argument, be considered as a contradiction to the professionalism of the mediators, who, on the contrary, commit themselves not to judge?
Let's suppose that this mediator's decision has been taken during a judicial proceeding. In this case, the mediator is supposed to make a report informing the judge that the mediation did not succeed.
Should the parties, who are not involved in this “stop decision”, respect confidentiality which was a measure taken by the mediator? This decision clearly appears as a repudiation of the parties or one of them, who then are referred to the judge. Inevitably, the judge notices that the parties did not reach an agreement, not because of themselves but of the mediator who has considered that there are unacceptable things for a professional whose acceptance level is deemed to be higher than the one of the judge.
Would this repudiation by "personal viewpoint", camouflaged as "ethical", not risk to break the confidentiality condition? Would it not induce that the case cannot be accompanied by a mediator respecting high moral values, even those surpassing the ones represented and defended by representatives of Justice?
The mediator's decision to stop the process, during a judicial dispute would attract as much more attention of the judge that he would have been the one to previously order the mediation, convinced that it would have been the most relevant. Therefore, the "ethical" decision of the mediator would contradict the judge's decision... and this can bring up intrigue!
However a mediator must identify the limits of his competences (if for example he fails to accompany an individual out of his conflictual dynamics). If so, he can put an end to his intervention due to the inability of one or all the parties to respect the rules of mediation: this is an observation of his competences limits, not a matter of "personal opinion" hidden behind "ethical" justifications. This can legitimately intrigue, even influence, a judge.
This is the reason why the Professional Chamber of Mediation and Negotiation requires each mediator who can’t pursue a mediation process for any reason (therefore non-identifiable) and especially during judicial mediations, to request one of his colleagues to take over him. He can tell the judge that he will be unable to pursue the mediation and that a colleague of him will be the one to take over it. The judge can take a new ordinance of appointment if the parties still want to pursue the mediation.
In no case the mediator should express his feelings to the parties or judge; otherwise he might fail (even indirectly) to respect his obligation of confidentiality.
Question to follow. In any case, mediators, let’s be attentive to these abusive ethical claims.