Ethical Questions for Mediators

The Marie L. Garibaldi American Inn of Court for ADR is the first (and so far the only) Inn of Court devoted expressly to the practice of arbitration, mediation and other non-judicial means of dispute resolution.  Located in New Jersey, it gathers, on a monthly basis, the upper echelon of retired and active judges, client representatives, and leading arbitrators and mediators to share experiences and insights, to stay abreast of recent case developments, and to hone instincts and skills as dispute resolution specialists.

Members Robert Lenrow and Hanan Issacs recently prepared a program that offered certain scenarios  implicating ethical challenges that may arise during mediation.  The sources for guidance in confronting these challenges (where they could be definitively found) were the Uniform Mediation Act and certain judicially-promulgated rules.  But whether or not your jurisdiction has a statutory basis for resolution of these situations, they are very well-framed and (with the authors’ permission) I offer some here:

The manager of your condo complex is a party to a dispute unrelated to the condo.  The relationship has been disclosed and the parties agree to your service.  But you remain concerned that, despite the approval, the other party my develop doubts about your impartiality, particularly as you meet in private caucus to persuade the parties.  Do you proceed?

A mediation terminates with the lawyers’ agreeing to terms and also agreeing to write up the agreement for later signature.  A week later, one of the lawyers advises that the other denies having made the agreement.  She asks the mediator to prepare a certification, and to testify if necessary, that an agreement was reached, but not as to the terms of that agreement.  Do you agree to make the certification?

A party agrees to settle an admitted financial obligation on the basis of twenty monthly payments.  While the claimant’s counsel is out of the room, the debtor mentions to you, “It doesn’t matter to me because I’m planning to file bankruptcy in a few weeks, and this guy will never see more than a dime on the dollar.  But don’t tell them that.”  Do you tell them that?

The claimant agrees to the payment of an amount equal to 10% of the debt, having been persuaded that the debtor can afford no more.  While the claimant is out of the room preparing settlement papers, the debtor shows you pictures of his mini-mansion in Malibu and the house he is building on the shore in Carmel.  Do you say or do anything?

In a mediation over property damage to rented property, Landlord states in everyone’s presence that he has no property insurance covering this damage.  While privately showing the mediator other documents, Landlord inadvertently displays a property insurance on the premises.  Do you say or do anything?

In a caucus session after five hours of mediation, one of the participants says to the mediator, “I am very impressed by you as a mediator.  I am involved in a number of other cases.  Would you be interested in mediating them?”  What if anything to you say to this party?  What if anything to you disclose to the other party?

Counsel for one party consistently relies upon case law that she insists is dispositive and that you know has been overruled.  Do you say so to her?  Do you say so to everyone?  What if the claims are clearly time-barred but the defendant seems unaware of that defense?

During the course of the mediation, plaintiff has been quiet, unassertive and detached.  Plaintiff’s counsel has become aware of weaknesses in the claim and has agreed on a resolution.  When counsel explains the proposed terms to the plaintiff, you note that the plaintiff seems not to understand the process and is unhappy with the proposed result, but that counsel, in your presence, pressures the plaintiff.  Do you do or say anything?

This is a mere selection of several good, trenchant and realistic ethics scenarios that were subject to the scrutiny of highly qualified participants.  I commend them to you.