Every mediator can tell the tale in which the parties are discussing possible mediators for a mediation and because one party has used a particular mediator before, the other party refuses to agree to use that mediator. Somehow, the refusing party thinks that the other party will have an advantage (and correspondingly, the refusing party will be disadvantaged) by using a mediator with which she has an existing relationship. In truth, it is advantageous, but not in the way the refusing party thinks. If anything, the existence of that relationship works to everyone’s advantage: it does not lead to partiality as the refusing party may think.
Both Standard III entitled “Conflicts of Interest” of the 2005 ABA Model Standards of Conduct for Mediators and California Rule of Court, Rule 3.855 require that I, as a mediator, disclose all matters that potentially affect my impartiality. This means I disclose the fact that I have conducted prior mediations with a particular party or attorney. More times than not, the opposing party and counsel have no objection. With good reason. . . it works to their advantage.
A case in point – about a month ago, I mediated a lemon law case involving a plaintiff attorney, defendant attorney and a manufacturer’s representative with whom I have mediated many previous cases. The matter did not settle. However, the parties were scheduled for a court conducted mandatory settlement conference (i.e. MSC) about a month later.
As this MSC date approached, the plaintiff attorney brought this fact to my attention, lamenting that it was going to be a waste of time. I offered to schedule a second session of the mediation prior to the MSC date in an effort to save the parties a trip to the courthouse. Because I had mediated many matters with both counsel, I felt comfortable calling opposing counsel on my own (who agreed that the MSC was going to be a waste) with this suggestion and trying to assist in any way I could to save what both counsel perceived to be a wasteful trip to the courthouse.
Due to calendar conflicts, we were unable to schedule a second session prior to the MSC. However, in the morning of but prior to the MSC, I continued to assist the parties hoping that they could resolve the matter prior to their afternoon appearance. But, they were unable to . . .and so I offered to assist by telephone.
Several hours later, I decided to telephone plaintiff’s attorney to see how the settlement conference was going. It was not going well. It was late in the day, and the parties were still far apart. With plaintiff’s counsel permission, I telephoned the defense and spoke with the manufacturer’s representative to learn what the “gap” or “impasse” was all about. Because of my relationship with both plaintiff and defense counsel and the manufacturer’s representative, I believed it “safe” to call a halt to the “negotiation dance” and get to the bottom line. Knowing the manufacturer’s bottom line and with permission, I called plaintiff’s counsel and (via speaker phone on his cell phone) provided the “reality check” conversation to plaintiff.
A few minutes later and after a quick phone call first to the manufacturer’s representative and then back to plaintiff’s counsel, the case settled. After ending the phone call with me, plaintiff’s counsel walked the 20 feet down the hall to where the defense were sitting, ironed out some minor details and told the court that they had settled. As the court reporter had left for the day, they could not stipulate to the settlement in open court and so drafted an agreement in the hall and signed it.
I am convinced that had I not made that initial phone call to plaintiff’s counsel to see how things were going, the case would not have settled. It was late in the day and the parties were too far apart. I am also convinced that I was able to do what I did solely because of my relationships with both plaintiff and defense counsel and the manufacturer’s representative. Had I not known them as well, I would not have had the chutzpah to conduct a telephone mediation in the midst of a court settlement conference.
Afterwards, both counsel expressed their deep appreciation. Neither of them really wanted to try this matter which was scheduled for trial in just two weeks.
So. . . relationships do matter and often work to everyone’s advantage. Before deciding not to use a particular neutral simply because the other party has worked with that neutral before, think again. . . you may be doing yourself a disservice.
. . . Just something to think about.