Stay up to date on everything mediation!

Subscribe to our free newsletter,
"This Week in Mediation"

Sign Up Now

Already subscribed No subscription today
<xTITLE>“Abusing the Mediation Process”</xTITLE>

“Abusing the Mediation Process”

by F. Peter Phillips
January 2020

Business Conflict Blog by Peter Phillips

F. Peter  Phillips

Two experts in the Milan UIA Mediation Forum addressed “Abuse in the Mediation Process.”  The speakers were Renate Dendorfer-Ditges of Bonn and Galyna Yeromenko of Kyev.  The contributions of Anne-Karin Grill of Vienna were also represented, though her illness frustrated her in-person participation.  Topics included bad-faith participation, lying by the parties or by the mediator, and what constitutes unethical behavior.

One scenario discussed was a mediator’s making a suggestion to a party that the other party asked him falsely to convey as his own idea.  Is that a lie?  Is it deceit?  Is it professionally acceptable?  (This scenario comes from the INTA/CPR video, “Resolution Through Mediation”)

A second topic involved the conduct of parties that might constitute “bad faith.”  What about refusing to mediate?  Sending a representative to mediation without authority to settle?  Entering into mediation with the objective of learning about the other party’s information, risk attitudes, testimonial evidence, or self-doubts in order to assist in litigation?  Can a court reasonably require that parties engage in “good faith” mediation, in light of the difficulty in defining that term and determining what conduct constitutes its breach?  Would a mediator’s refusal to convey a party’s offer, on the ground that it would violate public policy, itself constitute lack of good faith?

What of the impact n the promise of confidentiality?  If a mediator determines a party is behaving “in bad faith,” may a mediator report that behavior to a referring court?  Must she do so?

Finally, what if one party agrees to transfer funds to the other, while the mediator knows that such an effort would violate only laundering laws. Does the mediator have an obligation to caution? To inform? To be silent?

Biography


F. Peter Phillips is a commercial arbitrator and mediator with substantial experience providing consultation on the management of business disputes to companies around the globe.

A cum laude graduate of Dartmouth College and a magna cum laude graduate of New York Law School, Mr. Phillips served for nearly ten years as Senior Vice President of the International Institute for Conflict Prevention and Resolution (CPR Institute). During that time, he earned a reputation as an author, teacher, industry liaison, and systems designer for the avoidance, management and resolution of complex and sophisticated business conflicts.

In 2008, Mr. Phillips formed Business Conflict Management LLC (BCM) in order to offer his direct services as a neutral and a consultant. Through BCM, Mr. Phillips also continues his career as a highly sought-after public speaker, facilitator and instructor.



Email Author
Author Website

Additional articles by F. Peter Phillips