{"id":1235,"date":"2013-04-13T10:40:33","date_gmt":"2013-04-13T14:40:33","guid":{"rendered":"http:\/\/businessconflictmanagement.com\/blog\/?p=1235"},"modified":"2013-04-13T10:40:33","modified_gmt":"2013-04-13T14:40:33","slug":"ethical-questions-for-mediators","status":"publish","type":"post","link":"http:\/\/www.businessconflictmanagement.com\/blog\/2013\/04\/ethical-questions-for-mediators\/","title":{"rendered":"Ethical Questions for Mediators"},"content":{"rendered":"

The Marie L. Garibaldi American Inn of Court for ADR<\/a> 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. \u00a0Located in New Jersey, it gathers, on a monthly basis, the upper\u00a0echelon\u00a0of 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.<\/p>\n

\"\"<\/p>\n

Members Robert Lenrow<\/a> and Hanan Issacs<\/a>\u00a0recently prepared a program that offered certain scenarios \u00a0implicating ethical challenges that may arise during mediation. \u00a0The sources for guidance in confronting these challenges (where they could be definitively found) were the Uniform Mediation Act<\/a> and certain judicially-promulgated rules<\/a>. \u00a0But 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:<\/p>\n

The manager of your condo complex is a party to a dispute unrelated to the condo. \u00a0The relationship has been disclosed and the parties agree to your service. \u00a0But 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. \u00a0Do you proceed?<\/p>\n

A mediation terminates with the lawyers’ agreeing to terms and also agreeing to write up the agreement for later signature. \u00a0A week later, one of the lawyers advises that the other denies having made the agreement. \u00a0She 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. \u00a0Do you agree to make the certification?<\/p>\n

A party agrees to settle an admitted financial obligation on the basis of twenty monthly payments. \u00a0While 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. \u00a0But don’t tell them that.” \u00a0Do you tell them that?<\/p>\n

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. \u00a0While 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. \u00a0Do you say or do anything?<\/p>\n

In a mediation over property damage to rented property, Landlord states in everyone’s presence that he has no property insurance covering this damage. \u00a0While privately showing the mediator other documents, Landlord inadvertently displays a property insurance on the premises. \u00a0Do you say or do anything?<\/p>\n

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. \u00a0I am involved in a number of other cases. \u00a0Would you be interested in mediating them?” \u00a0What if anything to you say to this party? \u00a0What if anything to you disclose to the other party?<\/p>\n

Counsel for one party consistently relies upon case law that she insists is dispositive and that you know has been overruled. \u00a0Do you say so to her? \u00a0Do you say so to everyone? \u00a0What if the claims are clearly time-barred but the defendant seems unaware of that defense?<\/p>\n

During the course of the mediation, plaintiff has been quiet, unassertive and detached. \u00a0Plaintiff’s counsel has become aware of weaknesses in the claim and has agreed on a resolution. \u00a0When 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. \u00a0Do you do or say anything?<\/p><\/blockquote>\n

This is a mere selection of several good, trenchant and realistic ethics scenarios that were subject to the scrutiny of highly qualified participants. \u00a0I commend them to you.<\/p>\n","protected":false},"excerpt":{"rendered":"

A handful of ethical scenarios tests whether your mediation practices conform to professional standards.<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[11,35,14,26],"tags":[15,27],"class_list":["post-1235","post","type-post","status-publish","format-standard","hentry","category-conflict-resolution","category-ethics","category-mediation","category-teaching","tag-mediation","tag-teaching"],"aioseo_notices":[],"_links":{"self":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/posts\/1235","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/comments?post=1235"}],"version-history":[{"count":0,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/posts\/1235\/revisions"}],"wp:attachment":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/media?parent=1235"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/categories?post=1235"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/tags?post=1235"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}