IV. Costs and Fees

1. Explanation of Fees and Charges

If fees are charged, a mediator or his or her agency should explain before mediation begins the fees and any other related costs to be charged. Mediators or their agencies should commit their understanding to a written agreement with the participants before the mediation process begins.

2. Contingent Fees

Reporter Note: There have been unresolved discussions about whether contingency fees should be allowed, i.e., this section eliminated or modified. Concern is: What happens to the mediation process if the mediator has a financial stake in the outcome? On the other hand, if contingent fees are prohibited then sophisticated participants who desire and use this type of fee arrangement would be prevented from using it.

Three possibilities:

  1. Neither mediators nor their agencies should charge contingent fees or base fees on the outcome of mediation.
  2. Neither mediators nor their agencies should charge contingent fees or base fees on the outcome of mediation unless special precautions are taken to minimize potential conflicts associated with the fee arrangement.
  3. Charging contingent fees or fees based on the outcome is normally discouraged, although in special situations with competent advice, both participants may agree to such arrangements.

Reporter Note: Virtually all standards which have considered this issue have categorically disallowed such fees, e.g.,

  • Model Standards of Conduct for Mediators, American Arbitration Association, American Bar Association & Society of Professionals in Dispute Resolution (1995).
  • Proposed Standards of Practice for Lawyers Who Conduct Divorce and Family Mediation, American Bar Association Family Law Section Task Force (July 1997).
  • AFM and AFCC Standards of Practice for Divorce and Family Mediation, Academy of Family Mediators & Association of Family and Conciliation Courts.
  • Standards of Practice for California Mediators, California Dispute Resolution Council.
  • State Mediation Standards of Practice, North Carolina Dispute Resolution Commission (1996).
  • Oregon State Mediation Standards of Practice, Oregon Mediation Association.
  • Standards of Practice for Mediators, The Mediation Council of Illinois.
  • Pennsylvania Council of Mediators Ethics and Standards of Conduct (November 6, 1998).

3. Referrals and Commissions

No commissions, rebates, or similar forms of remuneration should be given or received by a mediator for referral of clients for mediation or other related services.

Go to: V. Confidentiality and Exchange of Information

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