North Carolina Court Requires Disclosure of Insurance Coverage Remaining Prior to Mediation (4/23/08)
Keith Seat

The North Carolina Business Court in Harco Harco National Ins. Co. v. Grant Thornton LLP, required the defendant to disclose the amount of insurance remaining under its liability policy immediately prior to mediation, even though the court did not require disclosure of all insurance information sought. The court relied on the requirement to mediate in “good faith” and held that refusing information about available insurance coverage was not good faith. The court noted that the North Carolina Supreme Court’s governing interpretation of the discovery rule, which requires disclosure of the “true facts” of insurance coverage, is broader than the analogous federal rule.

Harco National Ins. Co. v. Grant Thornton LLP, 2008 NCBC 5 (N.C. Bus. Ct. March 4, 2008)

Ethical Negotiations (4/21/08)
Phyllis Pollack

      The art of negotiation can present ethical dilemmas. As explained in the April 2008 (Vol. 11, No. 4) issue of Negotiation published by the Program on Negotiation at Harvard Law School, at times, negotiators  will make decisions that clash with their own ethics. Such clashes can arise in a myriad of situations.
 

      For example, a negotiator may attempt to create value at the expense of others. The scenario given describes two pharmaceutical companies settling a patent-infringement suit. As part of the out of court settlement, the defendant company agreed to delay marketing its generic drug while plaintiff agreed to pay defendant a large sum of money for unrelated products. The U.S. Federal Trade Commission filed a complaint against the two companies urging that plaintiff’s payment to defendant was for the purpose of keeping defendant’s generic product off the market. Although the Administrative Law Judge disagreed with this assessment, the Commission, itself, found that the two companies settled (i.e. created value) at the expense of potential consumers of the generic drug.
 

      A second example involves stereotyping some, thereby favoring others. While everyone wants to believe that he/she treats all others equally and favorably, the results of an online test – the Implicit Association Test at http://implicit.harvard.edu/implicit - will reveal that each of us have certain attitudes or biases toward race, gender and other traits. Thus, as much as a negotiator may think she is being “neutral,” the potential for bias and/or favoritism is there. It is something to be mindful about during each negotiation.
 

      A third example is when negotiators ignore conflicts of interest. “Psychological research shows that when decision makers have a motivation to interpret data in a certain way, they are incapable of being truly objective.” (Id. at 3). Conflicts of interest will most often exist when a person is negotiating as an agent for another. In such situations, the interests of the client and those of the agent (i.e., an attorney or real estate broker) will not be in perfect alignment. An example of this is the issue of attorneys’ fees in any litigation. During the mediation, the interest of the attorney on this issue often conflicts with reaching a

      The article then discusses ethics in terms of the behavior of others. It suggests that we should not overlook or forgive unethical behavior by others, because by doing so, we, implicitly, approve such behavior. For example, we should not overlook behavior that would harm us if exposed. The example given is the use of performance – enhancing drugs in Major League Baseball (“MLB”). For many years, the wide use of such drugs was an “open secret,” and never questioned by management or by the union. Why was it overlooked? According to research, “MLB leaders succumbed to motivational blindness, or the common tendency to overlook others’ ethical lapses when confronting the behavior would harm us. . . .” (Id. at 3). Think of the great single season homerun race between Mark McGwire and Sammy Sosa or of Barry Bonds’ chase for the all time homerun record. Each of these brought much attention and revenue to MLB. To confront the issue of steroid use could have jeopardized both. 
 

      Further, we should not excuse those who delegate unethical behavior. Examples are the Chinese factory owners who, to make greater profits, subcontracted out certain parts of their production for  pet food or toys which, ultimately, led to deadly pet food and lead-painted toys. Not only should the subcontractors be held responsible, but the factory owners should also be held culpable.
 

      The final example of an ethical lapse is judging by outcomes rather than by processes. That is, making the result more important than the process and employing the attitude that if the result did not harm anyone, then the fact that an illegal or unethical practice was used is of no moment. Referring to the above example of lead paint in toys, suppose the toys are sold and (1) harmed many small children, or alternatively, (2) harmed no children at all. Should the difference in result dictate our view of what the factory did to increase its profits? It should not.
 

       So. . .while everyone attends mediation with the hope of resolving the dispute, perhaps each of us should keep in mind that settlement should not be reached at the expense of ethics.
   

          . . .Just something to think about.    

Mediator Ethics: Conflicts of Interest (3/31/08)
Victoria Pynchon

1.  Steadfast adherence to a strict moral or ethical code. 2. The state of being unimpaired; soundness. 3. The quality or condition of being whole or undivided; completeness. ETYMOLOGY: Middle English integrite, from Old French, from Latin integrits, soundness, from integer, whole, complete.

 American Heritage Dictionary, 4th Ed. 2000

I attended a seminar recently in which a retired Judge-mediator said the following from the podium  -- "I don't tell a new client that I've mediated for his opposition before."

"Hmmmmmmm," I was thinking, "how's he going to justify that?" 

The answer, unfortunately, was by way of his own self-interest. 

"If I disclosed all of my former relationships with attorneys," the Judge said, "I'd never get any new business."   

I know this mediator; he's in heavy rotation and is a talkative guy.  So I'm assuming he's said this before and no one has corrected him, which means he's not the only one out there who's a little fuzzy on mediation ethics. 

This comment made me decide to address mediation ethics a little more systematically than I have before -- beginning with conflicts of interest and using the Association for Conflict Resolution's Model Standards of Conduct for Mediators as my starting point. 

STANDARD III. CONFLICTS OF INTEREST.

I invite comment from my blogging buddies -- Diane Levin, Gini Nelson, Stephanie West Allen,  Geoff Sharp and Christopher Annunziata if they have an extra moment in their day.  Take a look, by the way, at Michael Moffitt's post on Geoff Sharp's post on Mediators Who Party with Clients here.

A. A mediator shall avoid a conflict of interest or the appearance of a conflict of interest during and after a mediation. A conflict of interest can arise from involvement by a mediator with the subject matter of the dispute or from any relationship between a mediator and any mediation participant, whether past or present, personal or professional, that reasonably raises a question of a mediator’s impartiality.

B. A mediator shall make a reasonable inquiry to determine whether there are any facts that a reasonable individual would consider likely to create a potential or actual conflict of interest for a mediator. A mediator’s actions necessary to accomplish a reasonable inquiry into potential conflicts of interest may vary based on practice context.

C. A mediator shall disclose, as soon as practicable, all actual and potential conflicts of interest that are reasonably known to the mediator and could reasonably be seen as raising a question about the mediator’s impartiality. After disclosure, if all parties agree, the mediator may proceed with the mediation.

D. If a mediator learns any fact after accepting a mediation that raises a question with respect to that mediator’s service creating a potential or actual conflict of interest, the mediator shall disclose it as quickly as practicable. After disclosure, if all parties agree, the mediator may proceed with the mediation.

E. If a mediator’s conflict of interest might reasonably be viewed as undermining the integrity of the mediation, a mediator shall withdraw from or decline to proceed with the mediation regardless of the expressed desire or agreement of the parties to the contrary.

F. Subsequent to a mediation, a mediator shall not establish another relationship with any of the participants in any matter that would raise questions about the integrity of the mediation. When a mediator develops personal or professional relationships with parties, other individuals or organizations following a mediation in which they were involved, the mediator should consider factors such as time elapsed following the mediation, the nature of the relationships established, and services offered when determining whether the relationships might create a perceived or actual conflict of interest.

Court Permits Post-Mediation Evidence of Settlement Agreement from Mediator (3/18/08)
Keith Seat

In litigation over an alleged written settlement agreement, a New York court in Arben Corp. v. N.Y.S. Thruway Authority upheld the confidentiality of mediation and settlement discussions relating to the underlying dispute, but permitted post-mediation evidence from the mediator (who had become a paid consultant to the claimant, apparently to help enforce the purported settlement agreement) about whether or not a settlement agreement had been finalized and then breached. The court based its decision on a written agreement to mediate between the parties and on New York law (CPLR § 4547) which codifies the common law “settlement privilege.” The court concluded that negotiations concerning the underlying dispute between the parties were protected, but that CPLR § 4547 does not block efforts to prove the existence of a settlement agreement. The court explained that the policy goals of encouraging settlements requires the ability to prove when a settlement agreement has been reached.

Arben Corp. v. N.Y.S. Thruway Authority, No. 2008-036-308 (NY Ct. Cl., February 26, 2008)

The Guerrilla vs. The Humanist Negotiator (3/09/08)
Robert Benjamin
This provocative article discusses and contrasts a hard-edged approach to negotiation with the recalcitrant Iranian administration that is in stark contrast to the more prevalent view of negotiation as a humanistic and rational enterprise. This goes to the heart of how negotiation and mediation are practiced, not just on a geopolitical level, but in all dispute contexts.

Mediator Loses Certification in Virginia (3/05/08)
Keith Seat

A Norfolk mediator has lost his Virginia Supreme Court mediation certification as a result of signing forms stating that he had mentored or co-mediated with new mediators when he had not. The mediator, who founded the largest private mediation firm in Hampton Roads, has been decertified as a mentor for two years, and must re-apply for certification after nine months if he wishes to be recertified as a mediator. This is the first decertification of a mediator by the Virginia Supreme Court, although about 20 complaints have reached the formal stage of the Court’s mediation grievance process during the 14 years it has been in operation.

Virginia Lawyers Weekly (February 4, 2008) (Subscription Required)

Alabama Again Introduces Mediation Confidentiality Legislation (3/05/08)
Keith Seat

Legislation has been introduced again this year in Alabama to add additional confidentiality protections to mediation, by providing that mediators in all mediations generally would not be required to testify or produce documents concerning mediation in any adversarial proceding. Adding this testimonial immunity is intended to increase public confidence in mediation.

Alabama S.B. 36; Alabama H.B. 30

Ethical Codes and the Commercial Mediator (2/27/08)
Geoff Sharp

Over at ADR Prof Blog, Michael Moffit posts a PowerPoint presentation by Dwight Golann and Ellen Waldman on Ethical Codes and the Commercial Mediator.

The underlying message is that ethical codes are clear, practice is not - ask any seasoned mediator, they'll say the same in a tired but resigned tone.

Just two of the interesting angles on ethics covered in the slides include;

1. Manipulation vs Reality Testing - including the use of fear - something this blog has attempted to tackle a while back in a post The legitimate use of fear to encourage settlement;

• Giving a slanted opinion - overstating risks - is manipulation.
• What if mediator gives accurate info - but intentionally focuses on a sensitive issue?
• What if disputant wants to settle to avoid a risk that mediator views as unlikely? Is silence OK?

2. Conflicts of Interest - again touched on here at this blog in a recent post 'Get a life' or 'Yeah, right on', with an erudite response by Moffit in his post The Ethics of Mediators Who Party;

• Commercial mediators are hired almost exclusively by lawyers, not clients, and must keep them content or lose business

Idaho Introduces Mediation Confidentiality Legislation (2/06/08)
Keith Seat

Idaho recently introduced legislation to enact the Uniform Mediation Act (UMA) in order to establish confidentiality for mediation communications, with specified exceptions. Such legislation is intended to encourage greater use of non-judicial mediation by providing confidentiality protections that are uniform with the recent rules adopted by the Idaho Supreme Court for court-annexed mediation. The Idaho legislation also incorporates the United Nations Model Law on International Commercial Conciliation, which is a supplement to the UMA for international commercial mediations, unless the parties agree otherwise.

Idaho SB 1261

Counsel in Contempt for Breaching Mediation Confidentiality (2/06/08)
Keith Seat

Despite acknowledging error and offering a formal apology, counsel for plaintiff in Williams v. Johanns was found in civil contempt by the U.S. District Court for the District of Columbia for filing a pleading containing statements made in mediation. The court held a show cause hearing and ultimately imposed a nominal fine, noting the importance of confidentiality in the mediation process.

Williams v. Johanns, 2008 WL 36633 (D.D.C., January 2, 2008) (Subscription Required)

Utah Supreme Court Upholds Mediation Confidentiality, Seals Record, Recuses Trial Judges (2/06/08)
Keith Seat

The Utah Supreme Court in Reese v. Tingey Construction reversed the trial court’s order requiring counsel for a party to be deposed to determine whether the parties had orally agreed to settle during mediation, based on state law prior to the Utah Uniform Mediation Act taking effect on May 1, 2007. The Court emphasized the importance of confidentiality to the mediation process, noted that the limited statutory exceptions to mediation confidentiality were not met, and rejected the lower court’s notion that mediations contain both confidential and non-confidential portions and that counsel could be required to testify about the non-confidential aspects. The Court stated that parties are free to enter into oral agreements during mediation, but that a written agreement – even if just an email exchange – is needed for a party to obtain judicial assistance enforcing the settlement agreement, since the mediation is confidential. The Court criticized both the trial court and parties for freely discussing mediation communications in the litigation, sealed portions of the record containing confidential mediation information, and ordered any trial judges who had reviewed confidential information to recuse themselves from further proceedings.

Reese v. Tingey Construction, No. 200060594 (Utah, February 1, 2008)

Mediator ethics: how professional codes of conduct fall short (2/04/08)
Diane J. Levin

ADR scholar and law professor Michael Moffitt has rightly lamented the lack of meaningful guidance that professional rules of conduct for mediators provide the practitioner. This is especially so when more than one ethical duty is at stake, since codes of conduct provide no instruction on how best to balance one ethical duty against another.

A case from Pennsylvania demonstrates the challenges real-life issues raise. The York Daily Record reports on the controversy generated by the selection of a neutral to mediate a land seizure dispute between county commissioners and land owners. The mediator had served as re-election campaign manager for the president commissioner, who had voted in favor of the land owners. All parties were aware of the mediator’s ties, yet selected him because of his reputation for honesty as the best person to help them settle their differences. Meanwhile, some members of the public are not pleased by the decision.

It’s a real-life case that pits two ethical duties against each other: party self-determination on the one hand, and on the other, the duty to identify, disclose, and avoid conflicts of interest.

If it were you, what would you have done?

Mediator Ethics (2/04/08)
Jan Frankel Schau

It's an interesting thing, mediator ethics. I know that many mediators, particularly those that had a stint as Judges in prior lives, advise the parties before them that they will beat up on each side until they get a settlement. I, on the other hand, tend to prefer to cast the whole event in a more positive light, by letting the parties know I'm there to partner with them to get the best deal--while telling the same to the other side. In the end, we achieve the same result: a settlement that both parties can live with. But what I hope to achieve is a settlement in which both parties are satisfied, whereas those that take the "beating up" approach tend to go after the settlement where both parties are equally unhappy. Is that a violation of my mediators ethics? I attended a training this week with the LA Superior Court in which the Judge very plainly cautioned that we must never allow a litigant to have reason to believe we are biased towards (or against) them. Yet I know it is common practice in our community for mediators to treat clients to meals, sporting events and concerts. Even a bottle of wine or cigar at the conclusion of a settlement is not unheard of! So are our ethical constraints different than a Judges? And if so, is it time for us to revisit them? I'm still considering this one...with no answers this week, only questions.

Georgia Supreme Court Creates Mental Capacity Exception to Mediation Confidentiality (12/12/07)
Keith Seat

While emphasizing the importance of mediation confidentiality and urging caution, the Georgia Supreme Court in Wilson v. Wilson created an express exception to mediation confidentiality when a party tries to void a signed settlement agreement by asserting lack of mental competence. Although the divorcing couple who mediated without counsel present signed an agreement stating that all aspects of the mediation would be privileged and “absolutely confidential,” the Court affirmed that it was permissible for the mediator to testify about the mental competence of the party who challenged the settlement agreement by asserting that he was depressed, bipolar, on several medications and did not remember signing the settlement or know it was legally binding. The Court stressed that there was no testimony on the substance of the mediation or specific communications and that testimony was needed in order to protect the integrity of the mediation process and avoid an unjust result. The Court found it helpful that some courts treat an assertion that a mediated agreement is unenforceable as a waiver of confidentiality, which is in line with an exception in the Uniform Mediation Act (which has not been adopted in Georgia). The Court also noted that it was permissible for the mediator to draft the settlement agreement for the parties.

Wilson v. Wilson, No. S07F1201 (Ga. Sup. Ct., Nov. 21, 2007) (Subscription Required)

Mediator Privilege Adopted in New Jersey (12/12/07)
Keith Seat

The New Jersey Supreme Court adopted a new evidentiary Rule 519 on “Mediator Privilege” in September which shields mediation communications and allows a mediator to refuse to disclose a mediation communication and to prevent anyone else from disclosing a mediation communication of the mediator, with certain exceptions. The language in the Rule is from the New Jersey Uniform Mediation Act which was adopted in November 2004.

New Jersey Rule of Evidence 519 (Effective July 1, 2008); Summary

'Get a life' or 'Yeah, right on' (12/11/07)
Geoff Sharp

Great comment from my friend, Mr/Mrs/Ms Anonymous on my previous post about going along to a Christmas bash last week;

"Geoff, the real question here is whether you as mediator should be going to a repeat user's Christmas party at all..."

But I can't decide whether it is ridiculously politically correct or if there is an ethical point to be made here...

Although, I think John Lande of Missouri University would probably say there is - in Lawyers’ Routine Participation Directs Shape of Liti-Mediation he observes;

"... As lawyers become repeat-users of mediation services, mediators may well see the lawyers as the mediators' clients, rather than the principals, with whom the mediators are much less likely to have repeat business. This is especially likely where the lawyers, rather than the principals, shop for mediators.....

Continuing relationships between lawyers and mediators can result in mediator bias. When lawyers (or their major clients) in a two-party case are comparable in their status as repeat purchasers of mediation services, the mediator would presumably be equally dependent on both sides and generally would not have an incentive to favor one side over the other.

But when one side is a repeat buyer, such as an insurance company or a lawyer who uses mediation frequently, and the other side is not, the mediator could consciously or unconsciously be affected by this. Although mediators cannot make a formal decision favoring one side or another, mediators can help or interfere with the efforts of any side. Mediators can influence the outcome" [read more]

The Ethical Standards that Guide Mediator Conduct (11/20/07)
Victoria Pynchon

At the close of yesterday's seminar on mediation ethics for lawyers, I was asked what ethical standards guided my own practice.  Other than "neutrality" and maintaining confidences, I'm sorry to say that the question caught me short.

As promised to teleseminar participants, I provide JAMS suggested Mediator Ethics below together with a link to the JAMS article explaining each ethical standard here.

GUIDELINES

I. A MEDIATOR SHOULD ENSURE THAT ALL PARTIES ARE INFORMED ABOUT THE MEDIATOR'S ROLE AND NATURE OF THE MEDIATION PROCESS, AND THAT ALL PARTIES UNDERSTAND THE TERMS OF SETTLEMENT. 

II. A MEDIATOR SHOULD PROTECT THE VOLUNTARY PARTICIPATION OF EACH PARTY. 

III. A MEDIATOR SHOULD BE COMPETENT TO MEDIATE THE PARTICULAR MATTER. 

IV. A MEDIATOR SHOULD MAINTAIN THE CONFIDENTIALITY OF THE PROCESS. 

V. A MEDIATOR SHOULD CONDUCT THE PROCESS IMPARTIALLY. 

VI. A MEDIATOR SHOULD REFRAIN FROM PROVIDING LEGAL ADVICE.

VII. A MEDIATOR SHOULD WITHDRAW UNDER CERTAIN CIRCUMSTANCES.

VIII. A MEDIATOR SHOULD AVOID MARKETING THAT IS MISLEADING AND SHOULD NOT GUARANTEE RESULTS.

[(c) copyright JAMS 2003.  For more info from JAMS, visit www.jamsadr.com or call 1.800.352.5267]

I ask my mediation blog buddies Geoff Sharp, Diane Levin, Paula Lowhon, Phyllis Pollack, Jan Schau, Gini Nelson, all of the generous academics at Indisputably, and Chris Annunziata for additions to the list or comments about it.

Diane Levin on Mediator Ethics (11/20/07)
Victoria Pynchon

Diane Levin of the Award-Winning Online Guide to Mediation and the World Directory of ADR Blogs and principal of Partnering Solutions responds to our request for comment on the Rules of Ethics governing the work of mediators as follows:  

The JAMS standards that you link to are similar but not identical to the standards of conduct promulgated by numerous other organizations and professional associations for mediators. As a practitioner in Massachusetts, I adhere to a combination of several standards that apply to my work.

Sources of Ethical Standards for Mediators

First, there are the Model Standards of Conduct for Mediators approved and adopted by the American Arbitration Association, the American Bar Association, and the Association for Conflict Resolution in 2005. 

In brief, they include self-determination by parties; impartiality of the neutral; avoidance of conflicts of interest; competence of the neutral; confidentiality; responsibility for the quality of the process; truthfulness in advertising and solicitation; accuracy of information regarding fees and other charges; and, the advancement of mediation practice.

Responsibility to Improve the Profession

That last duty I'd like to underscore, since it's one that I increasingly see mediators ignore or, worse, spurn. It calls upon mediators to advance the practice of mediation by, among other things, fostering diversity, mentoring new mediators, and -- here's the important one:

A mediator should demonstrate respect for differing points of view within the field, seek to learn from other mediators and work together with other mediators to improve the profession and better serve people in conflict.

(Emphasis mine.)

To me that means not only respecting the various models of mediation practice that abound, but to resist the temptation to label some mediators as superior or inferior to other mediators on the basis of practice area or profession of origin. We've got to stop putting each other down, folks.

Uniform Rules of Dispute Resolution

I also mediate within the Massachusetts courts which require neutrals to observe the Uniform Rules on Dispute Resolution.  Rule 9 of the Uniform Rules spells out a mediator's ethical duties which include impartiality; freedom from conflicts of interest; informed consent; disclosure of fees; confidentiality; truthfulness in advertising and solicitation; responsibility to non-participating third parties (children in a divorce case, for example, or the public and public safety in a dispute involving a public construction project); and, requirements for withdrawal.

Some points to note about these rules.

Rule 9(c), Informed Consent, prohibits mediators from providing legal advice and coercing the parties to settle.

I think this is critical, since the prohibition on providing legal advice underscores that the mediator's role is to facilitate negotiation and decision-making, not to serve as advocate. I also agree with its prohibition on coercion, which strips the parties of the power and the right to make their own decisions free from pressure by the mediator or the agenda of the court -- both of which may have an interest in obtaining the settlement of as many cases as possible.

This places the needs of the parties front and center, not as mere afterthought.

In addition, I'm a member of the Massachusetts Council for Family Mediation, which has its own rules of conduct for its members, which resemble but are not identical to the rules discussed above.

These rules require mediators to clarify for parties the difference between mediation and other processes such as litigation, arbitration, negotiation through lawyers, and therapy; and that they encourage parties to seek professional advice such as legal, financial, therapeutic, or marriage counseling.

A substantial number of my family mediation clients are not represented by counsel. Because it's easy for unrepresented parties to be confused about the mediator's role, I take great care to emphasize that my role is to mediate -- and that I will not be their lawyer, will not and cannot represent them, and will not provide legal advice -- and take care to explain the difference between a mediator and a lawyer. I would do this even if the Massachusetts Rules of Professional Conduct, Rule 2.4, "Lawyer Serving as Third Party Neutral", didn't require me to do it.

All of these various bodies of ethical rules and duties guide my conduct at the mediation table, Vickie.

But there's another ethical duty that I honor.

I don't think you'll find it formally recorded in our professional canon, but it's this: connect with other mediators.

I am fortunate to have a network of trusted friends and colleagues (and of course bloggers) in the mediation profession to whom I turn when an ethical dilemma confronts me. We need each other.

It's one reason why ABA Section on Dispute Resolution's Model Standards of Conduct Standard IX, Advancement of Mediation Practice, resonates so strongly with me. Not only do we benefit as individuals, but we benefit collectively when we work together to improve our practice.

Our Friend and Colleague Jan Frankel Schau Responds on Mediator Ethics (11/20/07)
Victoria Pynchon

In response to our call to mediators to discuss the issue of mediator ethics, ADR Services and AAA neutral Jan Frankel Schau responds as follows:

First of all, bravo for raising such an interesting question. I am still mulling over the last one you raised about whether mediation seeks to do justice or only settle cases...

Here's my addition:

A mediation should, above all, protect and safegbuard the mediation process by allowing each participant to be fully heard and by facilitiating the full and fair opportunity to explore all possible options for resolution of the conflict presented.

I would also add the following:

A mediator should not

• impose upon a disputant any settlement or resolution which is against his/her will or best interest.
• knowingly encourage a settlement which is in itself illegal or immoral.
• condone or knowingly permit the perpetuation of a fraud.

A mediator must assure that all settling parties are afforded a full opportunity to consider the implications of all settlement offers and demands and to reject any settlement offer which is not acceptable, after such a full and fair opportunity and consideration.

A mediator should at all times protect the free will of the disputants in both the process and the ultimate outcome of a conflict's resolution by providing careful and thoughtful explanation of the offer and demand as well as all implications and consequences of accepting or rejecting the negotiated terms.

Happy Thanksgiving!

Gini Nelson on Mediator Ethics: First, Do No Harm; Then, Do Good? (11/20/07)
Victoria Pynchon

Gini Nelson is the founder and author of the Engaging Conflicts Blog.  Gini  received her law degree from George Washington University Law School in 1983 after teaching Social Problems at the University of Kansas while completing her MA in sociology.

Gini's practice  includes mediation and settlement facilitation.

Gini, who posted her response to my request for comments on mediation ethics on her own blog here, did so before I noticed and after I make a few edits here.  Any flaws in this version must therefore be laid at my door. 

Gini's pure unmolested thinking can be found here.  Gini's slightly edited thoughts (for style only) are in italics below.

As a starting point, I echo the physicians' ancient ethical code as First, do no harm.

When we look at short lists of ethical obligations, this bedrock principle appears to undergird all of them -- most of which emphasize client determination and transparency. This list should be short and it should be clear.

The obligation to do no harm, however, must be distinguished from the aspirational goal of "doing good."  

I am concerned about the blurring of lines between the two.

Is it our ethical duty, for instance, to advance the field of mediation, as much as we might aspire to do so?

Let's Take Pro Bono Services as an Example of an Aspirational Goal

I, for one, oppose mandatory "pro bono" services, whether the professionals being hauled into servitude are mediators, lawyers, physicians, accountants or interior decorators (as much as the world would benefit were it as aesthetically pleasing as, say, every shop window in Paris).

At least in New Mexico, however, we are not ethically required to provide pro bono services.  We are only asked to aspire to provide them.

This professional aspirational goal leaves it up to the individual attorney to consider what she can afford in terms of time, money and energy when considering whether to provide her services for free.  Despite the clarity with which this principle is expressed in New Mexico's Code of Professional Responsibility, I've sat in meetings with a combination of practicing attorneys, practicing mediators, state bar staff, court staff, and a judge where everyone was in complete accord on a mediator's ethical obligation to provide pro bono services.

Why the Problem?

When the people responsible for establishing and implementing court-annexed mediation programs misunderstand an aspiration as an ethical obligation, they feel free to incorporate mandatory pro bono mediation services in those programs.  In New Mexico, most state and city, government and judicial ADR programs require their mediators to provide their services free of charge. 

I understand the budgetary constraints these programs work with.  At the same time, I believe a confusion of the professional aspiration to "do good" with the ethical obligation to "do no harm" provides principled justification for program designers to expect mediators to work for free.

This, of course, harms the solo practitioner who can seldom afford to provide the same scale of pro bono services that larger or richer offices can handle.  Perhpas more importantly, it constitutes a continuing harm on the entire mediation field by demeaning the value of its practitioners' services.

This confusion also perhaps helps fuel some of the intolerance of other forms of practice that Diane writes about here.

Subpoena of Mediator Upheld in New York (10/31/07)
Keith Seat

A New York appellate court upheld the subpoena of a mediator in a one-paragraph opinion in Hauzinger v. Hauzinger, despite the confidentiality agreement signed by the parties. Noting that that parties had not been represented by counsel in the mediation of a separation agreement, the opinion explained that the issue before the court was whether the separation agreement terms were “fair and reasonable,” so it was not an abuse of discretion for the trial judge to refuse to quash the subpoena. Moreover, the appellate court was not swayed by the confidentiality provisions of the Uniform Mediation Act, since New York has not adopted the Act and the court did not find it a matter of public policy.

Hauzinger v. Hauzinger, 43 A.D.3d 1289, 842 N.Y.S.2d 646 (NY App. 4th, Sept. 28, 2007) (Subscription Required)

Mediation Defense Fails to Prevent Criminal Penalties Flowing from Unauthorized Practice of Law in Canada (10/31/07)
Keith Seat

A paralegal was sentenced to four months of house arrest for contempt of court in Ontario after violating a permanent injunction prohibiting the practice of law. The paralegal unsuccessfully asserted that she was merely involved in mediation, which is not regulated, because she advertised that she could prepare legal documents and provide services relating to uncontested divorces.

Law Times (October 15, 2007)

Mediation Confidentiality in New York? Not According to Hauzinger Decision (10/22/07)
This decision concerns the unsuccessful attempt of a mediator to quash the subpoena issued by defendant for the mediator's appearance and papers at a deposition in this divorce action. Should this decision stand, mediators in New York and elsewhere plainly must promote clear and binding confidentiality legislation. The New York court ignores the parties' contractual agreement for confidentiality in favor of unbridled litigation. This decision highlights how private mediation has now come to be viewed, at least in New York, as a cog in the judicial machinery. The failure to recognize the value of mediation and critical importance of protecting parties' and mediators' expectations of confidentiality is troubling at best. This case should be a wake up call for mediators to defend the critical qualities, including effective confidentiality agreements, necessary for successful mediation.

There Are Lies And There Are Lies (9/10/07)
Edward P. Ahrens
Do mediators tell lies? Of course not. Do mediators always tell the truth? Of course. Do mediators always TELL? Don't bet on it. Do the parties' legal advocates never tell lies and always tell the truth? Weell. At least one leading mediator and trainer offered this advice to some neophyte mediators: "Don't believe anything a lawyer will tell you during a mediation!"

Concepts of Religion, Civic Responsibility Promote Cooperation, According to Study (7/27/07)
Diane J. Levin
Canadian psychologists have found that when people are primed with religious concepts they behave in more altruistic ways.

Secular humanists need not fear--the same results were produced when participants were instead primed with concepts relating to civic responsibility. Researchers used word games to surreptitiously introduce these concepts to their subjects. Interestingly enough, exit interviews revealed that participants were unaware that they had been primed.

What I find fascinating about the study is the extent to which human behavior can be so readily influenced. And it certainly raises intriguing possibilities for the mediator's opening statement, already important for the extent to which it can shape the negotiations to follow, as attorney-mediator Christopher Annunziata discussed recently at CKA Mediation & Arbitration Blog. All the more reason for mediators to carefully consider the words they choose to frame the conversation.

(Via Boing Boing.)