john cleary, Brisbane, Australia 08/21/02
Good title. Why accept a mediation with no preparatory process of any kind? Surely it is within what I call Intake that parties pick up on process and are urged to seek clear and independent legal advice? In my model there are no secrets so I would not be caught hearing unshared admissions. I agree with the earlier comment that what you entered into was a commercial negotiation and thats maybe why you became so queasy. What if you had brought the two motorists together and let them explain to each other what the accident had done in their lives? Why let the lawyers muddy your stream when the protagonists are there waiting to talk? Great to share.
Mike Young, Los Angeles CA firstname.lastname@example.org 07/30/02
Thanks For The Comments
It's nice to see that even France is not free from those pesky ethical dilemmas. I appreciate the comments and the recognition that at times our job as mediator is not as straight forward as it might seem from the outside. I think Mr. Newberry is right, that there are going to be situations we face where there are no accepted rules yet, and where we must simply do what we think is right, acknowledging that another mediator in our same shoes might choose a different course . . . and be just as correct in doing so.
As to Mr. Stimec’s comment that one of four choices may be to breach confidentiality, thankfully I haven’t been faced with that situation. I would think a mediator would exhaust every other possible way out of the dilemma before resorting to breach. However, I suppose there could come a time when breaching confidentiality is the only way out. If so . . . it would make a fine article.
Arnaud STIMEC, Nantes (France) 07/21/02
Thank your for sharing this type of situation and sharing your doubts. Too many mediators try to appear as heroes with no hesitations.
My experience in supervising mediation teams brought me other cases with strong dilemnas. I really thing the mediator shouldn't be left alone with such situations. There are basically four choices :
1) Try to empower the party (this I think what you did by reflecting a question)
2) Use your ethical right to stop to be a mediator
3) Forget confidentiality (this is according to me acceptable for some issues, for instance two parents who would admit - and leave it - that one of them had sex with the children)
4) Stay on the illusion of procedural justice
Another dilemna ?
Two workers in a mediation. One is the plaintiff for what is supposed to be a workplace aggression. In fact, during caucuses and during the mediation, the plaintiff admit he complained under pression of the employer (who had fired the other one for other reasons) but refused to officially admit it for fear (and under threat) of losing his job. The employer wanted this complaint has an evidence to justify the lay off.
Working on that case with a team of mediators we finally found some possibilities... what do you think ?
Madge , Los Angeles CA 07/19/02
Thanks goodness I am far enough on the food chain that I don't do these anymore. There are almost always negotiations and not true mediation in my opinion. I also have been known to say to plantiff's that their medical bills in my experience can be cut from 1/2 to 1/3 and that that is the responsibility of their lawyer to secure. I learned this by once settling a case that clearly wouldn't cover the meds and the lawyer advised me of the unspoken rules of PI and medical charges especially when the plantiff's were sent by their lawyers to "certain" doctors.
Madge , Los Angeles Ca email@example.com 07/19/02
I have had that scenario happen to me as well and I encouraged the plantiff to barter and make it a negotiation. The lawyer had not met the client until that day and I was convinced that she could have a malpractice suit against him if I allowed the mediation to continue without explaining to the plantiff how all this worked and what the usual and customary plans by insurance companies were. She readily picked up on my concern and ended up with more money. The lawyer in this case was worthless. It is very hard to stay neurtral and I think if we always do we can lose our humanity.
Greg , Chicago IL 07/10/02
"Car Accident" Mediation
This article is excellent and proves many outstanding points. Michael's view needs to be heard louder and clearer by more people in and outside of the legal environment. These are issues which should be covered more frequently by the media.
Sterling Newberry, El Cerrito CA firstname.lastname@example.org 07/09/02
I agree this is a dilemma with no real "answer". I agree with what you did for two reasons. First, your questions to the plaintiff and her attorney put the authority and responsibility back where it belongs, which is mostly not in the hands of the mediator. Second, it seems to me impossible to know what would have happened if the case had gone to trial or another lawyer involved. I don't see such guess work as being sufficient to decide what to do, although it may have a place as one factor. In the final analysis, I beliueve each mediator in each case has to decide where to draw their own line. I don't see any hard and fast rule coming to the rescue. I do find your case study worthwhile for the questions it raises. Thank you.