Whathappens when a mediator believes they are being impartial, but one party feelsotherwise? Or when a mediatorneeds help to continue a mediation competently, who should agree to that?

These questions stayed with me after attending an IMI mediation meeting atSingapore on 24 August 2026, “Mediation Ethics at the Frontier: EmergingChallenges and Professional Standards”, where practitioners were invited toshare views on the non-binding draft Code of Conduct for Mediators.

It’s worth starting with what “non-binding” means here, because it shapeseverything else. Like the IBA Guidelines on Conflicts of Interest inarbitration, or various UNCITRAL notes, this draft is soft law. It creates nolegal liability and carries no sanctions of its own. Its authority restsentirely on mediators and organizations choosing to be guided by it. That makesprecision matter in a particular way. A binding statute can survive someambiguity because a court will eventually interpret it. A soft law instrumenthas no such backstop. If a term is left vague, it risks meaning somethingslightly different to every mediator who reads it, which undercuts the veryconsistency the Code is trying to build across borders and practice styles.

I want to say upfront that I think IMI’s effort here is worthwhile.Bringing together ethical expectations across such different mediation contextsis not a small undertaking, and inviting practitioners to stress-test the draftis exactly how it gets sharper.

From the discussion at the conference

Two issues came up directly in the room and stayed with me afterwards.

Contingency fees. Practice Rule 1.3.2 prohibits fees contingent on the outcome or amountof the mediated outcome. The room didn’t fully agree on what counts as “contingent”in practice. One challenging question raised was whether such an arrangementmight be the only basis on which some parties would agree to mediate at all.

I understand the underlying concern. A mediator’s financial stake in asettlement could affect, or appear to affect, their independence, and under asoft law framework, appearance carries real weight since there’s no court tolater untangle the reality from the perception. But the rule as written doesn’tmap out its own edges. How should deferred payment or conditional feereductions be treated? What should a mediator say when the parties themselvespropose the arrangement? Their agreement doesn’t resolve the ethical questionon its own, but guidance could at least explain why.

Disciplinary action. The other live issue was less about what the Code prohibits and moreabout what happens when it isn’t followed. Section 3(c) states that failing tomeet the Standards “may be considered within the IMI Professional ConductAssessment Process and result with disciplinary sanctions.” That answerswhether sanctions are possible. It says far less about how they would actuallywork.

Take a hypothetical: a mediator, certified or qualified through IMI andbased in a particular country, is found to have acted unethically. At whatpoint does that conduct cross into something sanctionable? And once it does,what can IMI, an organization with no regulatory authority and no enforcementpower of its own, do about it? Would it write to a bar association or mediationbody in the mediator’s home country? Would it rely on a local organization themediator is affiliated with to take its own action?

This is where the non-binding nature of the Code matters most. IMI isexplicit that the Code creates no legal liability and is not meant to be usedin national disciplinary proceedings unless a national organization voluntarilyadopts it for that purpose (Section 3(d)). That is a sensible limitation for aninstrument with international reach and no power to impose itself otherwise.But it leaves the “disciplinary sanctions” mentioned in Section 3(c) sitting ina kind of institutional grey zone: real enough to be referenced, but dependententirely on the cooperation of bodies IMI doesn’t control. For mediators andparties trying to understand what accountability looks like under this Code,that gap deserves more explanation than the draft currently gives it.

From my own reading of the draft

The rest of these observations developed afterwards, as I sat with thedraft on my own. One of them, the point on capacity below, I also raised thatevening at the networking dinner, in a conversation with IMI’s ExecutiveDirector, who had given the opening speech.

Capacity, described but never defined. General Principle 2.1.1 describes capacity, in thecontext of party self-determination, as the ability to perceive information,understand its meaning, and appreciate its consequences for decision making,extending to the ability to use the relevant technology in online mediation.But a description embedded inside a principle is not the same as a definition.Unlike “Mediation,” “Mediator,’ or “Online mediation,” each of which gets itsown entry in Clause 7, “capacity” never receives a standalone definitionanywhere in the Code.

That gap matters more once you see how the term is used. Practice Rule3.1 states that a mediator “shall terminate the mediation if a party lackscapacity,” making it a trigger for the most serious consequence available underthe Code, without ever pointing back to 2.1.1 or clarifying what standardapplies. So where is a mediator meant to look? A local statute? A professionalstandard from their own jurisdiction? Something else entirely? For a soft lawinstrument with no external authority to eventually settle the question, and nostatute it explicitly defers to, IMI is really the only body positioned todefine the term. Left this open, “capacity” risks being assessed inconsistentlyfrom one mediator, or one country, to the next, which is precisely the outcomea document like this is meant to prevent.

The gap between impartiality and its perception. Practice Rules 1.1.3.2 and 3.3.2address a reasonable person’s concern about partiality when it threatens thestanding of, and public trust in, mediation. General Principle 3.2 alsorecognizes that parties may need different interventions to supportself-determination.

But what should a mediator do when a party says, “You’re taking theirside,” and the mediator genuinely believes they have been impartial throughout?The Code addresses the two extremes: a mediator who knows she cannot beimpartial must withdraw, and a mediator facing a reasonable person’s concernserious enough to jeopardize public trust must also withdraw. What it doesn’taddress is the space in between, the accusation that may or may not meet thatthreshold, where a mediator is left to decide, largely on her own judgment, whetherto explain the intervention, revisit it with the parties, or treat it as asignal that withdrawal is the safer course. Some guidance on that middleground, hearing the concern, examining the intervention, and communicating thereasoning without assuming the accusation itself settles the matter, would helpmediators navigate a moment where their own confidence in their fairness isn’t,on its own, a reliable guide.

Getting help without overstepping. Practice Rule 1.1.1.1 allows a mediator to seek “reasonablyappropriate assistance” when she can no longer continue a mediationcompetently. Asking for help can be responsible practice. But confidentialconsultation with a colleague is a different thing entirely from bringing aco-mediator or specialist into the process itself. An express explanation ofwhen the parties’ informed consent is required for the latter would be useful.

Terminology worth tightening. Finally, the labels deserve attention. The introduction refers to bothIMI Certified and IMI Qualified Mediators. Clause 7(b) defines “mediator”generally, and 7(g) goes on to define IMI Certified Mediators specifically,using “mediator” as shorthand for them throughout the Code. There is nocorresponding definition of IMI Qualified Mediators anywhere in the draft.Defining both designations and being clear about which one a given clause isactually addressing, would make the document considerably easier to follow.

Why these matters

My interest in these details comes from believing in mediation. People bringuncertainty, emotion, and difficult choices into that room. Mediators needspace for professional judgment, and that judgment works best when it’s backedby guidance clear enough to explain, out loud, why a particular call was made.As a piece of soft law, the Code’s real strength will come from howconsistently practitioners can apply it and point to it, not from any authorityit can compel on its own. IMI’s draft offers a valuable foundation. Questionslike these are part of the ordinary, necessary work of turning a good idea intosomething mediators can rely on.

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