Conflict Resolution|Ethics|Mediation

Ethics: Disclosure Meets Confidentiality

Unmarketed, unheralded, and therefore largely unknown are the Model Standards of Conduct for Mediators, promulgated in 2005 by the ABA Dispute Resolution Section, the AAA and ACR. Even less well-known, one suspects, are the opinions of the Committee on Mediator Ethical Guidance that issue periodically interpreting those Standards.  Two recent opinions (available at the same link as the Committee, above) announced on June 22 are worthy of note.

The first addresses the inquiry: “Must a mediator disclose to prospective parties that she has conducted a number of previous mediations for one of the parties (or its attorney)?  What needs to be disclosed?” 

The opinion determines that a mediator is obligated to conduct a reasonable inquiry to determine whether she has conducted a prior mediation involving a present participant, and disclose the prior mediation and the name of the person(s) for whom the mediator worked in the past.  The opinion notes a concern that, where a substantial part of a mediator’s compensation comes from a single source, that relationship would reasonably raise a question of the mediator’s impartiality.  This obligation includes disclosing prior work involving an insurance carrier.

If, however, the mediator is asked what happened in the prior mediation, or whether the matter settled — and, by implication, whether the relationship does in fact form a substantial part of the mediator’s compensation — the mediator should refer the inquiry to counsel in the prior mediation.  This is because the Standards of Conduct apply to the mediator but not to the parties or counsel.  And here is where we come a cropper.

I frequently (well, maybe sometimes) get work because a party or counsel from a previous matter seeks to work with me again.  And I have no doubt that the prior party suggested me to the other side and vouched for my bona fides.  I nevertheless disclose at the outset that I have previously worked with so-and-so, and no one has ever objected or even expressed surprise to learn it.

But under the Uniform Mediation Act (enacted in my jurisdiction) and the terms of my own engagement agreement — and pursuant to broadly held best practices — no party or counsel may disclose any mediation communications for any purpose (other than narrow exceptions to prevent harm and so forth).  And urging them to do what I myself am barred from doing seems like an unacceptable way to maintain professional integrity or process reliability.  The proposed solution seems at odds with some fundamental principles.

The second opinion is noted just for the fun of it.  The inquiry was: “Is it appropriate for a mediator to advertise that he mediated ‘the largest settlement in the history of [the] county’?”

The opinion spends a good deal of analysis to conclude that the advertisement violates Standard VII (B), barring solicitations that give an appearance of partiality, as well as Standard V (A), requiring confidentiality of all information obtained in the course of a mediation.

It seems like overkill.  Boasting that you got a plaintiff a big settlement will surely drive every defendant away from your door.  The ad may or may not be ethical — but it sure is stupid!

1 Comment
  1. Thanks for pointing folks to the Model Standards and the committee that helps the field interpret them, Peter.
    These are important resources that too often go unknown among practitioners. Whether we agree with the Standards, or their interpretations, I think it is important for all of us to be conversant with these ethical underpinnings of our field.

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