Law Firm Name Not Allowed to Include “Mediation” in Rhode Island (8/27/08)
Keith Seat

A solo practitioner may not include the word “mediation” in the lawyer’s firm name, according to an Ethics Advisory Panel of the Rhode Island Supreme Court. Even though certain trade names may be used by lawyers, the Panel explained that inclusion of “mediation” would be misleading since consumers might assume that the court has jurisdiction to regulate mediation as it does the practice of law, when in fact the court does not regulate private mediation practices.

Rhode Island Lawyers Weekly (August 11, 2008) (Subscription Required); Rhode Island Supreme Court Ethics Advisory Panel Opinion No. 2008-01

Structured Settlement Etiquette (8/24/08)
Geoff Sharp

Those mediators who work in jurisdictions where structured settlements are the go may be interested in Mediation Etiquette 101...You Shouldn't Call The Opposing Expert Out in The Hall In Front Of Their Client!

California 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?

Last summer the Southern California Mediators Association posted to its blog an essay by mediator Christine von Wrangel provocatively titled, “Mediation: A Lucrative Career or a Ticket to the Poor House?“, a polemic directed against the many universities and training programs raising the career expectations of hundreds of mediator-hopefuls:

Almost every accredited or unaccredited university has jumped on the “mediation” bandwagon. Enrolling in these courses can cost students from $500 to well over $1,000 per course, depending on the provider. For universities, retired judges, conflict resolution institutions, government and private mediation providers, the business of offering mediation courses has become lucrative.

Marketing companies have now jumped on the band wagon, promising they can help mediators find a profitable niche in the market, provided of course they are willing to pay the thousands of dollars it takes to launch a marketing campaign.

Who are the winners in this mediation frenzy? Clearly, the providers of mediation training courses and related services.

Who are the losers? The students enrolling in these courses, because most have been lead to believe that they will be able to carve out a living as a mediator after “graduation.” And this is rarely the case.

Von Wrangel asked,

Is it ethical to continue to inundate the market with more mediation courses and classes, when most students who graduate face a superfluity of mediation providers, with little hope to start a successful mediation practice?

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:

The failure by mediation trainers to provide accurate information about opportunities to make money in mediation contributes to excess entry in the market for mediation services….[I]naccurate information about the availability of mediation jobs as well as overoptimism lead aspirant mediators to spend money on mediation training and starting a mediation practice, and incur opportunity costs by foregoing other career opportunities. Not only may the failure of mediation trainers to fully disclose the pros and cons of mediation practice and correct trainee misapprehensions be unethical, it also leads to socially inefficient outcomes. To correct this misallocation of resources, mediation training programs should disclose information about “the known opportunities, limits, and obstacles in mediation in mediation employment and professional practice opportunities.”

She even anticipates the counterargument mediation trainers often trot out:

While it is true that mediation may be a useful skill in our work and familial lives, it is likely that fewer people would spend hundreds or thousands of dollars on mediation training without the expectation that training could lead to a career change.

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

Two respected thinkers in the mediation field, Leonard Riskin and Nancy Welsh, recently made available on the Social Science Research Network an advance copy of the law review article they co-authored, titled, “Is that All There is? The ‘Problem’ in Court-Oriented Mediation“. It takes a long, thoughtful look at the failure of court-connected mediation to fulfill its early promises and the extent to which it increasingly ignores the needs and interests of the clients at the heart of the case:

In particular, court-oriented mediation now reflects the dominance and preferences of lawyers and insurance claims adjusters. These repeat players understand the problem to be addressed in personal injury, employment, contract, medical malpractice and other ordinary civil non-family disputes as a matter of merits assessment and litigation risk analysis. Mediation is structured so that litigation issues predominate; other potential issues - personal, psychological, relational, communitarian - disappear.

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:

The mediation processes failed to consider the [couple's] mediation-related core concerns. The procedural choices made by the lawyers and (apparently) not questioned by the mediators — that Donna and Tony would not attend or speak in most of the joint sessions, and that they would have no role in deciding upon procedures or subjects of discussion for the mediation — ignored their mediation-related core concerns of autonomy, status, and role…In stark contrast, the mediations were structured to address the core concerns of the repeat players, particularly the lawyers, both within and outside the mediation.

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.

Idaho S.B. 1261

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.