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Mediator Ethics: Conflicts of Interest

by Victoria Pynchon

From Settle It Now Negotiation Blog

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 AllenGeoff 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.

Biography


Attorney-mediator Victoria Pynchon is a panelist with ADR Services, Inc. Ms. Pynchon was awarded her LL.M Degree in Dispute Resolution from the Straus Institute in May of 2006, after 25 years of complex commercial litigation practice, with sub-specialties in intellectual property, securities fraud, antitrust, insurance coverage, consumer class actions and all types of business torts and contract disputes.  During her two years of full-time neutral practice, she has co-mediated both mandatory and voluntary settlement conferences with Los Angeles Superior Court Judges Alexander Williams, III and Victoria Chaney.  As a result of her work with Judge Chaney in the Complex Court at Central Civil West, Ms. Pynchon has gained significant experience mediating construction defect litigation.  Ms. Pynchon received her J.D., Order of the Coif, from the U.C. Davis School of Law. 



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Website: www.settlenow.com

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