Role of the Mediator

• Case Scenario 2: Type of case not specified
• Case Scenario 4: Business Partnership
• Case Scenario 5: Personal Injury
• Case Scenario 19: Business Contract
• Case Scenario 25: Employment
• Case Scenario 31: Ethics Issue - Role of the Mediator / Family

Case Scenario 2

• Ethics Issue: Role of the Mediator
• Type of Case Mediated: Not Specified
• Length: 115 words
• Author: Corder/Thompson & Associates, www.corderthompson.com

C. Collins, an attorney filed a lawsuit charging D. Dennison, a mediator, with the unauthorized practice of law. Collins says that at the mediation, during the time they were tying up the details of the agreement, the mediator stepped out of role and offered the opinion that something they were about to put in the agreement was not consistent with a specific statute/law/interpretation of the law. Collins says that this information put her client at a significant disadvantage and that Dennison was doing the other attorney’s job and therefore had stepped out of the role of the mediator. Collins claims that Dennison was giving legal advice and that this constitutes the unauthorized practice of law.

Case Scenario 4

• Ethics Issue: Role of the Mediator
• Type of Case Mediated: Business Partnership
• Length: 131 words
• Author: Corder/Thompson & Associates, www.corderthompson.com

H. Harrison and I. Ingles participated in a mediation and left with an agreement about how they would dissolve their partnership. After the mediation, Harrison changed his mind and decided that he wanted to keep the business phone number after all. Harrison therefore refused to sign a legal document drawn up by Ingles’ attorney. Ingles says that Harrison has to sign the document because the agreement they reached in the mediation is a contract. Ingles and Harrison agree that the mediator told them the agreement was a contract. Harrison says that his attorney says the mediated agreement is not a contract and that Harrison can change his mind about this item. Ingles is suing the mediator for providing misinformation and costing her a great deal of money to litigate this issue.

Case Scenario 5

• Ethics Issue: Role of the Mediator, Confidentiality
• Type of Case Mediated: Personal Injury
• Length: 135 words
• Author: Corder/Thompson & Associates, www.corderthompson.com

In a personal injury mediation, during a caucus with the attorneys for both sides J. Johnson, one of the attorneys proposed to K. Kendall, the other attorney that if they could come to a settlement favorable to Johnson’s client in this case, Johnson would guarantee a favorable settlement for a client of Kendall’s in another case. Kendall never responded to the request directly, but eventually Kendall’s client settled for less than L. Lieberman, the mediator, thought was fair settlement. Lieberman’s dilemma is how to handle this situation after the mediation. As a mediator Lieberman is obligated to keep all mediation communication confidential, unless there is an allegation of abuse or neglect to children, the elderly or the disabled. However, as an attorney, Lieberman has an obligation to report unethical attorney conduct to the State Bar.

Case Scenario 19

• Ethics Issue: Role of the Mediator
• Type of Case Mediated: Business Contract
• Length: 128 words
• Author: Charles Pou, chipbloc@aol.com

In a mediation of a business contract dispute, plaintiff initially claims $200,000 in damages and defendant offers to pay $50,000. After several hours of discussion, one key issue remains to prevent agreement: the valuation of a major asset involved in the contract. The parties are stalled at $150,000 versus $110,000. No further progress is produced by caucuses. Six hours later….

VARIANT 1: In joint session, both parties ask the mediator for his opinion as to what a reasonable settlement would be, based on what he/she has heard.

VARIANT 2: In caucus, one party asks the mediator for the same opinion.

VARIANT 3: In joint session, both parties ask the mediator to make a decision, which they will regard as binding, on the value of the asset in question.

Case Scenario 25

• Ethics Issue: Informed Decision Making, Role of the Mediator
• Type of Case Mediated: Employment
• Length: 149 words
• Author: Charles Pou, chipbloc@aol.com

Mediators are co-mediating between a corporate manager and his former employer in a lawsuit for breach of contract, and civil rights violations. The plaintiff -- a single, black mother who was dismissed after several disagreements with her supervisor -- is represented by a young lawyer recently admitted to the bar.

One of the co-mediators, having just mediated a similar suit, is aware of a recent case in the same jurisdiction that strengthens the plaintiff’s case substantially. He/she strongly suspects that the plaintiff and her attorney do not know of this case

VARIANT 1: Following the joint session, the co-mediators huddle and one mentions the case and asks whether he/she should say anything to either or both parties or their counsel.

VARIANT 2: This time, plaintiff is pro se. The co-mediators again huddle and one mentions the case and asks whether he/she should say anything to either or both parties.

Case Scenario 31

• Ethics Issue: Role of the Mediator
• Type of Case Mediated: Family
• Length: 47 words
• Author: Sue Bronson and Zena Zumeta, mediate@execpc.com

You have done marriage counseling with Dan and Rose and they indicate they want a divorce. Having seen your certificate from the Divorce Mediation Training prominently placed on your wall, they ask you to mediate since you already know their situation and the dynamics of their relationship.