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Mediation Ethics Articles
What's NewCalifornia Supreme Court Reverses Ghaderi: No Estoppel or Implied Waiver of Mediation Confidentiality (7/30/08) Keith Seat The California Supreme Court unanimously reversed the appellate court in Simmons v. Ghaderi, and concluded that a party is not estopped from asserting mediation confidentiality despite having litigated the details of the mediation for fifteen months. The case arose when Dr. Ghaderi gave her insurer permission to settle a medical malpractice case in mediation and then changed her mind after an oral agreement was reached, but before a written settlement agreement was signed. In a comprehensive decision analyzing mediation confidentiality, the Court held that no judicial exceptions to the statutory scheme are allowable, other than express waiver by the parties or when due process is implicated. The Court closely reviewed California’s statutory provisions and legislative history and noted that despite the legislature’s awareness that some bad faith conduct would go unpunished, it chose mediation confidentiality as paramount in order to promote mediation.
Simmons v. Ghaderi, S147848 (Cal., July 21, 2008) Subpoena of Mediator Upheld on Appeal in New York (7/30/08) Keith Seat A New York appellate court affirmed the appellate division’s upholding of a subpoena of a mediator in Hauzinger v. Hauzinger, stating that one party signed a waiver releasing the mediator from maintaining confidentiality and the other party waived confidentiality by seeking disclosure from the mediator. The mediator was not allowed to assert a qualified privilege, since the privilege was waived by the parties, but the court expressly did not rule on the applicable state statute.
Hauzinger v. Hauzinger, 43 A.D.3d 1289, 842 N.Y.S.2d 646 (NY App. 4th, Sept. 28, 2007), aff’d, 2008 NY Slip Op. 05781 (NY Ct. App., June 26, 2008) Too many mediators, not enough mediations: is it fair to keep training neutrals with career prospects so grim? (6/10/08) Diane J. Levin Too many mediators, not enough mediations: is it fair to keep training neutrals with career prospects so grim?
Von Wrangel asked,
Wellington mediator Geoff Sharp points his readers to a study recently released that provides the statistical evidence for von Wrangel’s concerns. In a report titled, “Making Peace and Making Money: Economic Analysis of the Market for Mediators in Private Practice“, Urška Velikonja, a Teaching Fellow at Harvard University, presents data that the supply of mediators far outstrips their demand and paints a distressing picture of the realities of mediation practice for the hundreds of aspiring mediators who emerge each year from trainings and degree programs across the U.S. Velikonja singles out mediation trainers for some sharp criticism:
She even anticipates the counterargument mediation trainers often trot out:
I at least am one mediation trainer who is brutally honest when people contact me for advice on becoming a mediator. I cringe every time I hear someone tell me that they plan to leave a well-paying job to become a mediator as soon as they finish their basic mediation training. I routinely tell people not to quit their day jobs, although many of them seem determined to do so, buoyed up by an unreliable optimism. And I despair when I get the inevitable email from a recent university graduate, desperately looking for work as a mediator and frustrated because their college placement office could not help them find a job. I don’t believe (yet, at any rate) that we should stop training people to be mediators. I still believe that the skills are useful in workplace, civic, and family settings. But Velikonja’s report should be required reading for anyone who is thinking about becoming a mediator. And I hope mediation trainers take the time to read it, too. Whose opinion counts: should clients, not lawyers, be the ones to evaluate mediators? (6/10/08) Diane J. Levin
While mediation may meet the expectations of the repeat players, it fails to honor those of the one-shot player — the client. Riskin and Welsh describe what this signified for one couple struggling with tragedy who had sued a hospital and a doctor for negligence in the medical care provided at the time of the birth of their son:
While I happened to be working my way through this article, a colleague of mine forwarded to me a link to Positively Neutral, a web site that provides feedback about mediators and other neutrals. The web site declares that it “provides attorneys with what they care about most: the opinions of other lawyers who have used a specific neutral or expert in their case”. With Riskin’s and Welsh’s points uppermost in my mind, I had to ask, what about the clients? (Photo credit: Curtis Fletcher.) Missouri Bar Begins Mediation Program for Attorneys in Office Conflicts (6/06/08) Keith Seat Attorneys in disputes due to economic changes at their firm or communication problems will be offered free mediation by the Missouri Bar in a program beginning June 1, 2008. The process requires the consent of both parties and will be confidential unless serious ethical violations are uncovered. The Bar will only pay out of pocket costs for mediators, but more than 100 attorneys have volunteered.
Missouri Lawyers Weekly (April 28, 2008) (Subscription Required) Idaho Enacts Uniform Mediation Act (5/21/08) Keith Seat Idaho has enacted the Uniform Mediation Act (UMA), effective July 1, 2008, in order to establish confidentiality for mediation communications, with specified exceptions. The 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. The UMA has now been adopted in the District of Columbia and ten states: Idaho, Illinois, Iowa, Nebraska, New Jersey, Ohio, South Dakota, Utah, Vermont and Washington state. 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
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.
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. 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. 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. 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
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
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
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.
[(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
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 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:
(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
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
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!
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Diane Levin
In response to our call to mediators to discuss the issue of mediator ethics, 
