At a CLE program I attended last week put on by the LA Superior Court and hosted by Pepperdine Law School, two of the panelists, Max Factor and Peter Robinson, got into something of a debate about how to handle an ethical situation. The topic concerned the mediator's responsibilities when the mediator learns that one party to a mediation has slipped a potential land mine into a proposed agreement. Suppose the party inserting such a provision admits their deceitful intent and specifically instructs the mediator not to tell the other side of the land mine's existence. Is the mediator bound to keep that information confidential? Perhaps, but to avoid being a party to a potential fraud, the mediator can at least still suggest that the other side read the draft carefully, and even take it back to the office overnight before signing. The mediator certainly doesn't have to urge the other side to sign such a trick agreement right away, or assure the other side that it is fair.
Doing that might even violate other ethical obligations. Peter Robinson reminded the participants that the first principle in the ABA Model Standards of Conduct for Mediators is self-determination. That principle is defined as "the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome." Mediators are not supposed to undermine that principle of self-determination for any reason, such as increased settlement rates, or pressure from the courts. The rules applicable to court program mediators in Los Angeles County Superior Courts emphasize that their purpose is "to inform and protect participants in these mediation programs, and to promote public confidence in the mediation process and the courts. For mediation to be effective, there must be broad public confidence in the integrity and fairness of the process. Mediators in court-connected programs are responsible to the parties, the public, and the courts for conducting themselves in a manner that merits that confidence."
C.R.C. 3.850. The mediator's obligations in upholding that purpose, include informing the parties of the voluntary nature of the process, and refraining from coercing the parties into continuing to participate. C.R.C. 3.853.
Is there a conflict between rules respecting self-determination and voluntariness, and rules protecting the confidentiality of the process? At the very least, there may be problems in enforcing the rules when the entire mediation proceeding is protected by confidentiality. But that should not give either party, or the mediator, a license to commit fraud or engage in other forms of coercion. Is there a potential conflict between mediators' business interest in promoting high settlement rates and pleasing the attorneys who refer cases to them, and their obligation to the parties to make sure the process is voluntary and fair? Perhaps in the short run. But in the long run, one hopes that mediators' concern for protecting their integrity and reputation would be more valuable.
One concern I have about the future of mediation, as the process becomes more accepted and prevalent, is that we will see a backlash against mediation similar to the backlash we have seen in recent years against arbitration. People were told that arbitration is quick, cheap and fair. When that sometimes turns out not to be the case, parties are rightly upset about giving up rights they would have had in court. That has led to a movement to restrict the use of pre-dispute arbitration clauses.
If more than a very few participants in mediation believe that they were railroaded into a settlement, or that important information was withheld from them during the process, we are going to start to see a backlash against mediation also. And that would lead to the imposition of more rules, and further limitations on confidentiality. The only way to maintain public confidence in the mediation process is to take these standards regarding voluntariness and fairness seriously, and find ways to make sure that mediators adhere to them.