I find out the kind of advice he wants,
and I give it to him.
Josh Billings (Henry Wheeler Shaw)
Ole Josh must have been a part-time mediator. He sure played it safe! I submit it might be the wisest course of action for modern-day mediators. Consider the following:
Rule 10.370, Professional Advice or Opinions, Florida Rules for Certified and Court-Appointed Mediators, reads as follows:
Rule 10.370(a), Providing Information, states: “…a mediator may provide information that the mediator is qualified by training or experience to provide.”
Rule 10.370(c), Personal or Professional Opinion, states: “A mediator shall not offer a personal or professional opinion intended to coerce the parties, decide the dispute, or direct a resolution of any issue…however a mediator may point out possible outcomes of the case and discuss the merits of a claim or defense…”
A Committee Note muddles the dilemma even further by stating: “…mediators may call upon their own qualifications and experience to supply information and options…”
All of which raises an interesting dilemma for mediators who dare to slog through this semantic swamp. Obviously, like the making of sausage and legislation, a valiant but beleaguered effort was made to accommodate the opposing views of those who believe attorney/ mediators should utilize all their legal experience and knowledge and those who believe the mediator should keep his mouth shut and his professional ego in check—a Three Stooges fire drill the result of which places the mediator in the untenable position of either or both violating the Rule or offending the litigants.
A mediator may “provide information” but not an opinion? He/she, however, may suggest “outcomes” and “discuss” merits? Huh? I expect while I’m sitting there trying to figure out the shadowy differences, the parties will up and leave me wallowing in my ambivalence—perhaps to settle the case without my incompetent help. (On the other hand, I guess anything that works…)
Now, if I’m way off base, I’m willing to be enlightened by you more knowledgeable readers (likely the vast majority). I for one do not plan to risk the more serious violation of the Rules by tossing around legal advice or opinions or engage in legalistic discussions, with either party in caucus or with both parties in joint session. That’s what their attorneys are there for!
I will continue to ask incisive, Socratic questions and, perhaps, offer (if demanded) a wide range of verdict possibilities, but I will also defer to the parties’ attorneys, whose experience in litigation is almost always superior to mine. To toy with the fine distinctions embodied in Rule 10.370 is to risk losing objectivity, allowing for a perceived bias, and inviting loss of the attorneys’ and the parties’ respect. The pitfalls are numerous and hard to avoid once you enter that jumble of guidelines.
There are, invariably, in any case, practical and factual aspects that can be dissected and analyzed by the mediator. Legal issues are not and should not be in his or her arsenal of persuasive techniques. I do not believe it is inconsistent to acknowledge that familiarity with the legal issues involved will aid the mediator in asking appropriate, even provocative, questions that will lead the parties to resolution. When mediation devolves into a pure, hard bottom legal dispute, however, dispositive motions are available. (High/low dice rolls on the outcome of such motions also can become the basis for a settlement agreement.)
In any case, it is not the mediator’s role to enter the judicial province and impose, directly or indirectly, a legal solution. As it is, we have our hands full trying to nudge, cajole, coax, persuade, sweet-talk, tease, tweedle and wheedle the parties into a win-win settlement of their differences. Sure beats the stress, delay, cost and uncertainty of a trial.