In Houston, UIA World\u00a0Mediation Forum Co-President Thierry Garby moderated a panel on mediator ethics.\u00a0 Speakers included Claude Amar, President of the French Academy of Mediators; Trey Bergman of Houston; Jim Lawrence of the University of Houston Law Center; and Patrick van Leynseele of Dal & Veldekens, Brussels.<\/p>\n
The opening issue was power imbalance.\u00a0 What role does the mediator assume when unfairness, fraud, lack of information, legal incompetence or failure of due diligence results in a proposed resolution that is incontestably unfair?\u00a0 In the United States, judges do not correct poor lawyering, and arguments that are not raised are not ruled upon. \u00a0Judicial practice in civil countries like France is entirely different. \u00a0Is there an obligation of a mediator to point out that value opportunities (such as claims on an excess insurance policy) are ignored?\u00a0 Conflicts of interest that arise from the party representative being hired by an insurance company were also raised.\u00a0 Mr. Bergman suggested that \u201cliving in the question\u201d might be an approach: Rather than stating something, asking \u201cWhat would happen if\u2026?\u201d\u00a0 The technique raises the issue without the mediator\u2019s losing credibility or trust, or appearing to advocate.<\/p>\n
Mediation compensation raises other issues.\u00a0 The example is two mediations:\u00a0 One involving several million and the other a few thousand dollars.\u00a0 The mediator\u2019s compensation is constant even though her value \u2013 as measured by the benefit to disputants — varies greatly.\u00a0 Is there any problem with the parties agreeing to a \u201csatisfaction fee\u201d given as a bonus by either or both parties at the end of the mediation?\u00a0 Were the mediator to agree on such terms, with the knowledge and agreement of all parties, would the mediation be conducted differently?\u00a0 What if the fee were payable only if the matter settled at or soon after the mediation?\u00a0 And would a third party be interested in learning that, in the past, the mediator received a success fee from the adversary in a previous matter?\u00a0 And would accepting such fees redound poorly in the long-term growth of the practice?<\/p>\n
Limits of confidentiality:\u00a0 A party offers a building in satisfaction of a claim.\u00a0 The party tells the mediator that the building is environmentally unsound, but instructs him not to inform the other party.\u00a0 Should the mediator facilitate, or even allow, fraud?\u00a0 Or is it the responsibility of the other party to do sufficient due diligence to get assurance of the value of the offered property, or else live with the consequences of failing to do so?\u00a0 What is the \u201cbest practice\u201d approach for the mediator who presides over a resolution that may be unenforceable, or even unlawful?<\/p>\n","protected":false},"excerpt":{"rendered":"
Ethical challenges for mediators take on new facets when seen from an international perspective.<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[35,14],"tags":[15,33],"class_list":["post-1384","post","type-post","status-publish","format-standard","hentry","category-ethics","category-mediation","tag-mediation","tag-public-policy"],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/posts\/1384","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/comments?post=1384"}],"version-history":[{"count":0,"href":"https:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/posts\/1384\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/media?parent=1384"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/categories?post=1384"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/tags?post=1384"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}