New ABA Mediator Ethics Opinion

In a previous post I noted the work of the ABA Dispute Resolution Section’s Committee on Mediator Ethical Guidance, which interprets the Model Standards of Conduct for Mediators (promulgated in 2005 by the ABA, AAA and ACR).  In that same post, I noted the frequent close correlation between ethical lapses and raw stupidity.

Well, we’ve got another one.

The Committee recently published an opinion that addresses the conduct of a mediator who posted the following on his Facebook page:

Whew!  Just settled my first Superior Court civil mediation.  A case involving a non-English speaking elderly client, who really really didn’t want to have to go through trial.  Possible jury verdict could have been zilch to around $80k.  I got her $50k.

The Committee’s formal opinion noted that the public Facebook post “would not be proper unless the mediator had the consent of all parties.”  I’ll say!

(See, that’s why I wouldn’t do well on Committees like this.  Lack the tact.)

Two grounds were cited in support of the Committee’s analysis.  First, Standard II(B), requiring impartiality, was violated by the mediator’s apparent sole concern on “getting” the plaintiff benefits.  Second, the Facebook post violated two subsections of Standard V (confidentiality) inasmuch as (a) it disclosed facts about participants in, and the outcome of, a confidential mediation and (b) it revealed the plaintiff’s sentiments concerning trial, which were presumably communicated during private session.

This is all very well.  But neither of these lapses sent me off my chair.  The one that jumped out at me was the sentence, “I got her $50k.”

My friend, you “got her” nothing.  One party offered, and the other party accepted, $50,000.  And you didn’t “settle the case” — they did.  It wasn’t “your” case, and it wasn’t “your” mediation — it was theirs.

This conflation of the mediator’s value with the occurrence of settlement during or soon after mediation is too frequent among folks who really should know better.  The case you’re mediating will certainly terminate prior to trial, for one reason or the other, and the fact that it settles during mediation doesn’t mean that “the mediator settled it.”

We often cite the statistic of the teeny number of filed civil cases that are disposed at trial (in federal district courts, 1.1%) in support of the importance of mediators’ contributions to those dispositions.  But what that statistic really shows is that parties usually settle litigated cases prior to trial. It doesn’t show that mediators settle cases that would not otherwise settle in the mediator’s absence.

I accept that mediation (not mediators) frequently prompts parties to consider settlement at an earlier stage than they might in the absence of mediation (though that’s hard to measure).  And I take it as an article of faith that good mediators are more effective than unskilled mediators in facilitating early settlement (though I have never seen reliable statistics on that, either).   But I am skeptical of the notion that a case that was not ripe for settlement nevertheless settled because of the mediator’s efforts.  And I reject utterly the idea that a mediator “settles cases.”

I don’t know whether I’m asking for professional humility or a simple reality check.  I do hope we remember that when we do our job, we don’t settle cases.  We help the parties to do so, if they conclude that it is in their interest to do so.  And when it happens the credit belongs to them, not to us.

With statistics like the ones cited above, we may as well take credit when water runs downhill.

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