Occasionally, I get stuck in a corner where I know that the Defendant in a dispute would pay more than the Plaintiff’s “bottom line”. Of course, this is revealed to me in confidence, and of course, I maintain that confidence all day long–even after the case settles for something less than the Defense was willing to pay. Still I am a little haunted by the collision between my duty of confidentiality, which in this instance is crystal clear, and my duty of neutrality. By NOT revealing or even hinting to the Plaintiff and his counsel that the Defense would pay, hypothetically “up to $75,000” at any time before the case settles at $55,000, am I favoring the happy Defense counsel and his client? Am I maintaining my neutrality or do I have a duty to hint at the possibility of a better settlement to the Plaintiff even if he is quick to reduce his demand to $55,000? My hypothetical assumes that Plaintiff is satisfied with the settlement at $55,000 for a variety of reasons which may include Plaintiff’s sordid past history, his lawyer’s incompetence or failure to comply with discovery deadlines or his inability to finance future litigation. As in every settlement, the parties are both satisfied with the outcome of the mediation, but a mediator with a conscience is left wondering: does my duty of confidentiality compromise my duty of neutrality? I’d love to have your thoughts, fellow mediators as this one is a big SECRET!
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