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?