Litigation certainly has its drawbacks. However, one thing that can certainly be said about the litigation system is that the protocols and ethics are usually pretty clear. For example, it is clear that it is inappropriate for a lawyer to speak directly to the opposing client (unless by mutual agreement of all the parties involved. During trials, there are rules of evidence that to a large extent govern what is and is not allowed at trial. In mediation, it is not so simple.
In the mediation process there are no set rules. Without your own set of clear guidelines and boundaries it is very easy to get trapped and tripped up. For instance, one of the more common dilemmas is what does a mediator do with unsolicited communications from one client? The answer is more complicated than it might otherwise seem. In my practice I have a general policy that I will only meet with both parties together (unless we all determine at some point that it would be beneficial to meet with parties individually). I also tell clients that any emails sent or received must be shared with and cc'ed to both parties. And, I tell clients at our first meeting that I will not discuss substantive matters with either of them individually. In theory, it sounds fairly simple. In practice, unless I were to draw a very bright line and tell my clients that I will have absolutely no communications with either of them outside of the mediation session, the bright line is very difficult to enforce. It is in the "grey areas" of communication that the "lingerers, malingerers and zingerers" come out to test the rules.
I have to explain first that I have a solo practice. I have no staff and I make my own appointments and screen all clients. While there are many benefits to this setup, it also has its drawbacks. So for example let's say the wife calls me to set up an appointment. During the course of this initial telephone call, when I ask for an address she let's "slip" the zinger that her husband is living with his new much younger girlfriend. Is she trying to influence me? Absolutely! Does it affect me? Probably not. However, I now have that information and have a bit of a dilemma. Do I disclose to the husband at our next meeting that his wife has disclosed the information? If I don't disclose to him that she has made me aware of this information and he later finds out that I knew, he may start to question whether I am somehow aligned with his wife. Do I need to get the wife's permission to tell him or did she give up any expectation that I would keep it secret by blurting it out?
The fact that the wife tells me that her husband is having an affair may not be as significant to the process as other facts which slip out to the mediator privately. An example of this occurred to me once with a client whom I place in the category of "lingerers". These are the clients who linger in my office to write a check or pack up all of their belongings while the other party has already made his or her exit. As soon as he or she has me alone and unsolicited, the client unloads a bit of information on me. In one particular case, the wife lingered in my office to write a check after the husband had to hurry off to a meeting. As she was finishing she proceeded to casually ask me what she should do about the fact that she had omitted a significant asset on her financial statement? You can see that as soon as the statement is out almost anything I do can potentially get me into more of a dilemma. I felt I could not ignore the statement so I responded by telling her that she needed to disclose the asset. She asked me what would happen if she did not disclose it? I informed her that either she needed to disclose the asset to her husband or I could but if she did not I would need to withdraw from the case. That then led to another problem. How do I suddenly terminate the mediation without informing the husband of the real reason?
Ironically, that same week, her husband got back at her without knowing it by privately forwarding an email to me that his wife had sent to him and that she had not intended to share with me. In this email she complained to him about me and how she felt I was wasting their time. On one level, I was concerned that she was not happy with me. On the other hand, it was at least creating some communication and bond between the clients. But the real issue was what do I do with this information? By sharing the email with me, the husband was undoubtedly trying to influence me. What do I tell him? I felt I needed to tell him that he needed to inform her that he had shared the email with me. If he did not, should I tell her that he had shared it with me? Could I? For obvious reasons, this mediation was not ultimately successful. However, I learned some valuable lessons about individual communication with clients.
These sorts of situations can occur not only when one party is left in the office. I have had clients casually drop explosive bits of information while their partner is in the bathroom or in the waiting before the other party shows up.
Email communications presents an area that is ripe for potential ethical quandaries. I tell clients that all emails must be copied to both parties. Although I always copy both parties, my clients often do not. Sometimes, it is perfectly innocent and with no intent to influence or hide. Sometimes, whether consciously or unconsciously, the solo emails have an agenda. If something is disclosed to me in an email that is not copied to the other client, now what is my responsibility? Is it to tell the client that the information must be shared?
It is inevitable that in any situation in which communication with one party can occur, it will. Sometimes the information will be innocuous. Other times though the information might put you as the mediator in an ethical quandary that prevents you from continuing the mediation.
Those clients I call "Malingerers" fit into a slightly different category. Whereas lingerers challenge the communication boundaries in mediation, malingerers challenge the assumption that the mediation is based on a full and honest exchange of information. These are the clients who continually come to mediation with their financial statements not completed or having forgotten to bring the statements they have repeatedly promised to bring. The delays may be perfectly innocent. Couples going through divorce are overwhelmed, the financial statements are onerous and often very difficult to complete. The party may not be good with numbers and is simply in avoidance mode. Or, a party may in fact be trying to hide something or simply using the mediation as a delay tactic.
Below are some thoughts about avoiding being trapped by lingerers, malingerers zingerers.
1. Create as bright a line as possible with couples around communication. For example, you can tell your clients that you will not read any communication that does not have the other person cc'ed. Similarly, you can tell the couple that you absolutely cannot have any conversations with either of them individually about anything other than scheduling and that if it occurs you might have to terminate the mediation. I go further and explain why I make these bright line rules. Clients will appreciate your vigilance and seriousness about your role.
2. If there are exceptions to the bright lines, be clear about them. For example, individual communications to plan meeting times and logistic are fine. But clients must know that the communications are limited, no exceptions.
3. Clients must be told and reminded that all emails must be cc'ed to the other party. This is something that can be included in your fee agreement.
4. Ideally, one's office space can be set up to avoid the "lingerers." But parties who want to grab you alone will find ways of doing it. More importantly, the mediator must establish the clear boundaries. Clients must be informed at the start that any information that is conveyed individually will be shared with the other party unless all parties agree otherwise in advance.
5. When it comes to documents and financial statements, I tell clients that I will not prepare a final agreement without having them exchange completed financial statements and all necessary documents. I explain that part of my role is to make sure that there will be no problems at their divorce hearing and if their financial statement is not completed or not completed properly they will most assuredly have a problem.
In divorce mediation, we are often dealing with individuals whose lives are in upheaval; they are confused, emotional and uncertain about what they should do and how to go about doing it. It is not my intent to suggest that mediation clients are always looking for ways to use the mediation process to their advantage. Some actions are perfectly innocent and some are calculated. Particularly because there are often still misconceptions about mediation, it is critical for us as mediators to establish clear guidelines and parameters for our clients about what is appropriate and not appropriate. Further explaining to the clients why we establish the parameters is helpful in obtaining a "buy in" from them to stick to the rules. The more that can happen, the fewer ethical quandaries the mediator will face.