One of the best things about being invited into the International Academy of Mediators circle of trust is the email traffic.
Frenetic conversations regularly flare up and then subside only to ignite again as someone joins the party late.
Here's one that is hot right now.
The initial email on Friday read:
"Eighteen months ago, I mediated an employment case involving a claim by Plaintiff Smith using Plaintiff’s Attorney Jones against Company Alpha.
Last month, I was retained to mediate another employment case involving a claim by same Plaintiff using same Plaintiff’s Attorney Jones against Company Beta (different defendant, different defense law firm).
If you were the mediator, would you have informed Company Beta and/or it’s counsel that you had previously mediated a case involving a claim by Plaintiff Smith using Attorney Jones against another former employer?"
Here are some of the responses;
1. By a retired judge - “In my view, there is no need to report (disclose) a prior mediation with the same counsel or the same party, unless the mediator subjectively believes that he/she has developed a bias for or against that counsel or party.
By itself, prior service as a judge for a case with the same party or the same counsel is not a ground for disqualification. I see no reason why prior service as a mediator imposes a greater duty, when the mediator has no decisional authority.
A contrary rule would impose significantly difficult problems. Many mediators maintain few if any records of prior cases which would easily reveal whether the same lawyer or the same party participated at some earlier time.”
2. By a LA mediator "... it is pretty simple to analyze. Ask yourself, "How would the 'other' side likely feel if these facts came out in the middle of the mediation?" If you have even the slightest twinge of heartburn when you ask yourself the question, you have to disclose it.
To be delicate about it, you might ask the familiar party, "Before I accept this engagement, I have to disclose Prior Case to the defense. If I can't disclose it in advance, I'm afraid I just can't take the case. Is it ok to disclose?"
At the level at which we practice, we are not the Drunken Sailors of Mediation, jumping at every Pretty Case that comes along."
3."...[you] can not reveal the existence of the previous case to the defense counsel"
4."...I don't see how you, as a mediator, are entitled to disclose this information without consent of the party. This information could seriously alter the relative negotiation leverage of the parties, and it is not the mediator's role to disclose information learned in confidence that will undermine one party's negotiation position. If the defendant has not undertaken a court records search, or otherwise engaged in discovery regarding the plaintiff's past conduct and lawsuits, it is not the mediator's position to remedy that deficiency. Otherwise, where do you draw the line? The plaintiff tells you that she has done nothing to mitigate damages, but the defendant doesn't know it yet. Do you tell? The plaintiff tells you that he has secretly obtained declarations from the defendant's employees that corroborate the plaintiff's position. Do you tell? Of course not. So why tell that the plaintiff has been involved in a similar case against a different defendant?"
5. By a UK mediator - "Isn't the golden rule that where you have been appointed previously by a plaintiff or a defendant, the other party in the proposed mediation should be notified and be given the opportunity either to confirm or cancel your appointment? This rule does not of course require that the circumstances of the first case are made known. Indeed mediation confidentiality prohibits that. In the second employment case, the defendant would not know that the first case you acted in was also employment related. Could have been a road traffic accident case, personal injury, for example"