Just Court ADR by Susan M. Yates,Jennifer Shack, Heather Scheiwe Kulp, and Jessica Glowinski.
Parties to court mediation in Florida have the opportunity to submit their complaints regarding a mediator to a robust grievance process. The structure includes four stages: committee review to determine whether a complaint is facially sufficient; a preliminary review of rules that may have been violated and the mediator’s response to the complaint, which are used to determine probable cause; a meeting between mediator and complainant; and a formal hearing. In “Mediator Ethical Breaches: Implications for Public Policy” (Penn State Yearbook on Arbitration and Mediation, Vol. 6, p. 107 (2014)), Sharon Press examines this grievance process and finds that the burden of proof required at the formal hearing stage has the potential to undermine the policy goals of mediation programs.
Press argues that a grievance process should support the policy goals of court mediation, specifically efficient resolution of cases and ensuring the quality of the resolution (which she believes depends upon upholding mediation’s underlying values of self-determination, impartiality and confidentiality). To support the goal of ensuring the quality of the resolution, the grievance process needs to provide access to complainants and due process to the mediators, and provide an opportunity for rehabilitation to the mediator. Press argues that rehabilitation allows mediators to learn from their mistakes and provide better service in the future. This, in turn, should enhance the quality of resolution.
Most grievance cases achieved these objectives, according to Press, because they were resolved early. Of the 77 complaints filed between 2000 and 2009, only four proceeded to a formal hearing. The others were withdrawn, dismissed or resolved short of the hearing. Eleven of those cases that weren’t withdrawn or dismissed at the first review led to sanctions being imposed on and accepted by the mediators. Press sees the early disposition of complaints as a positive thing, as this supports the public policy goals for the grievance process – particularly access, efficiency, due process and rehabilitation– which in turn support the policy goals of court mediation.
Press looks more deeply into the four cases that went to hearing to see if they support the policy goals of court mediation. She finds that the burden of proof is too high to accomplish this. The Supreme Court imposed a “clear and convincing evidence” standard that is best used for objective behaviors. If the mediator argues, for example, that a statement that the complainant construed as racist was really just said to break the ice, the court can’t find “clear and convincing evidence” of bias because there is no evidence of actual bias. However, the nature of mediation is such that the behaviors that uphold the underlying values of mediation are subjective in nature – that is, perception is everything. By the values of mediation, it doesn’t matter if the mediator thought that what she said was racist. The fact that the party reasonably could have felt the statement was racist is what is important.
Press concludes: “Because of the difficulty in meeting the burden of proof, complaints which raise important issues around self-determination, demeanor, coercion, and appropriateness of mediation, end up being dismissed and only those ‘objective’ complaints survive.” She also argues that the mediators don’t learn from a formal hearing process in which subjective complaints can’t be sustained. They enter the process believing they did nothing wrong and that belief is supported by the process. Thus, the policy goal of rehabilitation is not achieved for cases that go to a formal hearing, a goal that is achieved when resolution is achieved earlier in the process. Press recommends that the burden of proof for formal hearings be changed to the preponderance of the evidence for those cases in which decertification is not being pursued. This would permit sanctions to be imposed, thus effectuating rehabilitation.
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