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Victoria Pynchon

As the co-founder of She Negotiates Consulting and Training, I offer my services as a keynote speaker, trainer and consultant....

She Mediates

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She Negotiates

She Negotiates

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Mediator Ethics: Conflicts of Interest

1.  Steadfast adherence to a strict moral or ethical code. 2. The state of being unimpaired; soundness. 3. The quality or condition of being whole or undivided; completeness. ETYMOLOGY: Middle English integrite, from Old French, from Latin integrits, soundness, from integer, whole, complete.

 American Heritage Dictionary, 4th Ed. 2000

I attended a seminar recently in which a retired Judge-mediator said the following from the podium  -- "I don't tell a new client that I've mediated for his opposition before."

"Hmmmmmmm," I was thinking, "how's he going to justify that?" 

The answer, unfortunately, was by way of his own self-interest. 

"If I disclosed all of my former relationships with attorneys," the Judge said, "I'd never get any new business."   

I know this mediator; he's in heavy rotation and is a talkative guy.  So I'm assuming he's said this before and no one has corrected him, which means he's not the only one out there who's a little fuzzy on mediation ethics. 

This comment made me decide to address mediation ethics a little more systematically than I have before -- beginning with conflicts of interest and using the Association for Conflict Resolution's Model Standards of Conduct for Mediators as my starting point. 

STANDARD III. CONFLICTS OF INTEREST.

I invite comment from my blogging buddies -- Diane Levin, Gini Nelson, Stephanie West AllenGeoff Sharp and Christopher Annunziata if they have an extra moment in their day.  Take a look, by the way, at Michael Moffitt's post on Geoff Sharp's post on Mediators Who Party with Clients here.

A. A mediator shall avoid a conflict of interest or the appearance of a conflict of interest during and after a mediation. A conflict of interest can arise from involvement by a mediator with the subject matter of the dispute or from any relationship between a mediator and any mediation participant, whether past or present, personal or professional, that reasonably raises a question of a mediator’s impartiality.

B. A mediator shall make a reasonable inquiry to determine whether there are any facts that a reasonable individual would consider likely to create a potential or actual conflict of interest for a mediator. A mediator’s actions necessary to accomplish a reasonable inquiry into potential conflicts of interest may vary based on practice context.

C. A mediator shall disclose, as soon as practicable, all actual and potential conflicts of interest that are reasonably known to the mediator and could reasonably be seen as raising a question about the mediator’s impartiality. After disclosure, if all parties agree, the mediator may proceed with the mediation.

D. If a mediator learns any fact after accepting a mediation that raises a question with respect to that mediator’s service creating a potential or actual conflict of interest, the mediator shall disclose it as quickly as practicable. After disclosure, if all parties agree, the mediator may proceed with the mediation.

E. If a mediator’s conflict of interest might reasonably be viewed as undermining the integrity of the mediation, a mediator shall withdraw from or decline to proceed with the mediation regardless of the expressed desire or agreement of the parties to the contrary.

F. Subsequent to a mediation, a mediator shall not establish another relationship with any of the participants in any matter that would raise questions about the integrity of the mediation. When a mediator develops personal or professional relationships with parties, other individuals or organizations following a mediation in which they were involved, the mediator should consider factors such as time elapsed following the mediation, the nature of the relationships established, and services offered when determining whether the relationships might create a perceived or actual conflict of interest.

Comments (8)

Read through and enter the discussion by using the form at the end
Geoff Sharp - March 30, 2008 9:29 PM

Vickie,
I think you have put your finger on it -- this can't be right. I must say though, what I do may not be much better.

Just on Friday, I worked with a lawyer I had mediated for many times before and one for the first time. I made the point in private meeting prior to the start of the mediation advising the new lawyers parties that I had worked with the other lawyer before and was here in private session prior to starting to let them "get a look at me" and for me to pick up any particular matters required of me so as to serve them better.

Then in my opening comments, I made the offhand observation that I had worked with X before, and she knew me well enough to tell me when such and such an intervention was unhelpful and although I had not worked with Y before, I had already invited him to be very frank with me during the course of the day as to what was working or not working.

I suspect that this will not satisfy ethical purists but it is my rather cumbersome attempt to raise the repeat user issue so that it is not a big deal, as it often isn't.

Of couse I will have already covered the matter with the lawyers in the lead up to the mediation but do not bill it as "a disclosure" and anyway, in my experience, it sometimes does not get passed on to clients.

Comment, my friend?

Vickie Pynchon - March 30, 2008 10:28 PM

Geoff -- If this were easier, we wouldn't be having this conversation about it.

I do feel obliged to tell people up front that I have mediated for their opponent or even for the same party in a similar case. I was just asked to mediate a trademark infringement case by two lawfirms, for instance, neither of which I'd worked with before. But I had mediated a similar case for the same designer-client.

When asked if I was free to mediate the case, I said, "yes, but I'd like you both to know that I've mediated one of these for Client X before. I don't think that biases me in any way but I think both parties should know it."

I suppose I could be criticized for revealing that I'd mediated a case for Client X before if you believe that the FACT of a prior mediation about a similar issue for the same client is itself confidential. Because I only mediate litigated (i.e., public) cases, if I have to weigh my own potential conflict against disclosure of a non-specific "confidential" mediation, I'd I err on the side of disclosure.

I resolve these questions by asking myself, "would I want to know this if I were the "new" lawyer or the opponent of Client X. Or whether I feel uncomfortable NOT disclosing.

The answer is almost always "disclose" because -- were I the lawyer -- I'd worry about: (a) the mediator being influenced, consciously or not, by the very fact of multiple claims or by some information the mediator learned in confidence in Case No. 1 that is irrelevant to Case No. 2 but nevertheless persuasive in some way that would make the mediator press my client too hard; and, (b) I always worry about favortism, particularly if the mediator has mediated many cases for Client X.

As to your last comment Geoff, I don't think it's up to us to make sure the potential conflict information is passed along to the clients. I tell the lawyers. My duty's done. If they don't think it's important enough to tell their clients, that's their territory, not mine.

What do you guys think Diane, Gini, Stephanie, Chris or any of our readers?

Gini Nelson - April 1, 2008 12:07 PM

Vickie, it's a good topic. To me, a lawyer's selection of a specific mediator does tell me something about the lawyer and may tell me something about the mediator, just as would that lawyer's choice of any other professional in the case, e.g., child custody evaluator. Mediators like everyone else are subject to our human blind spots and biases, and all other kinds of individual variability. Not all lawyers are alike, not all judges are alike, not all mediators are alike. Hopefully they have a minimum level of professional expertise and ethics, but that doesn't tell us anything about their particular wisdom and skill.

I'm not sure this disclosure rises to the level of conflict of interest, however. I think it may go more to what I see as the difference between professional responsibility and ethics. Ethics go to more black and white, knowable facts, generally -- issues more people will agree on. Professional responsibilty goes more to grayer areas, where people's perspectives can legitimately differ enough that the state should not regulate and discipline in the same way as for ethicsw.

I would want the knowledge, I would want people to know enough about the implications to want the knowledge and to choose to disclose it; but I do not believe it should be considered a per se conflict of interest.

Again, Vickie, great topic!
Gini Nelson

Christopher Annunziata - April 1, 2008 5:30 PM

I have some quick thoughts before I get on my bike and ride this evening.

Maybe it is naivety, I'm not so sure that this is the thorny issue you are portraying it to be. There exists a finite number of lawyers in a given city/metro area. In practice, the successful mediators (here in Atlanta at least) rely heavily on repeat business. My "business plan" includes marketing to repeat consumers in an effort to get repeat business. In fact, I fail to see how a mediator can be (financially) successful without generating repeat business.

I look at it thusly: We are, in many respects, like judges. We are required by our code of ethics to maintain a level of neutrality and impartiality. A judge is not required to disclose the simple fact that parties or counsel have appeared before him. It is frankly irrelevant to the present case.

You may say that since we are directly compensated for our services, where judges are governmental officials, the promise of repeat business may create a relationship whereby the mediator may feel beholden to the party who sends him business time and again.

But how is that different that a judge accepting election campaign donations? In Georgia, our jurists are elected. They campaign every six years. They collect tens, if not hundreds of thousands from lawyers who argue before them every day. I have never once heard a judge say, "Well, Charlie there gave me $5000 for my last campaign. I must recuse myself."

I think the issue is (as stated in the model rules) whether the relationship "reasonably raises a question of a mediator's impartiality." I do not think that having worked for a party or counsel previously, in and of itself, reasonably raises a question of a mediator's impartiality.

That said, because self-determination is a core principle of mediation, I would disclose the fact to counsel before hand and allow them to decide.

Vickie Pynchon - April 1, 2008 10:02 PM

The California Dispute Resolution Council -- http://www.cdrc.net -- is the lobbying organization for mediators in California. It describes its mission as including the promotion of high standards of mediator conduct. The currently proposed CDRC "Principles" guiding mediator conduct require disclosure of prior relationships with parties or their counsel as follows:

"disclosure [should be] made of information which might reasonably raise a question as to the dispute resolver's ability to provide services impartially, including disclosure of recent engagement by or significant contact with any of the disputants, providers or participants in the dispute resolution process. The parties should have a meaningful opportunity to challenge any dispute resolver or ADR provider on the basis of bias, interest, partiality, business or close personal relationships, or institutional loyalties."

These are aspirational and not yet adopted. The previously adopted version of the CDRC "Principles" is a little fuzzier on the topic, i.e., providing that disclosure should be made of "recent prior selection by the same party of the same dispute resolver, and other information which might reasonably raise a question as to the provider's impartiality . . . "

Are there any ADR academics out there who have grappled with this issue; reviewed the literature on the topic; or, know of any existing case law?

Perhaps one prior employment does not raise a conflict, Chris, but what about regular repeat users who form a substantial part of your business? Isn't there at least an appearance of potential bias when your income is tied to the continued use of your services by a particular lawyer or law firm?

It actually troubles me that we can't answer this question more easily.

Christopher Annunziata - April 2, 2008 11:46 AM

Vickie:

Let me turn mediator on you and ask you this: What is your real concern? Is it that people get repeat business and that repeat business may affect their impartiality? Or is a struggle over the level of disclosure required to satisfy the ethical requirements that the mediator avoid the appearance of impropriety?

If it is the former, then I shall respond in the same manner I did in our discussion over licensure: There are good mediators and bad mediators; ethical mediators and unethical mediators. While unwitting parties may get hurt in the process, the market (or where applicable, the licensing board) will sort out the "bad" apples. If your market is anything like ours, word of unethical behavior will spread like wildfire. Good mediators will be good mediators regardless of how much repeat business they get.

If your concern is the latter, I can only suggest that a good mediator has little to fear from full disclosure of the relationship. The parties are free to decide.

Now, we are simply talking about a business relationship. One marked by a cordial familiarity, the occasional lunch, dinner or cocktail party at the firm. I see no problem with that. I don't even have a problem taking cases from firms for whom I've worked in the past.

I'd feel uncomfortable mediating for the handful of lawyers who I know well (I prefer to socialize outside my profession, so I have few close lawyer friends), but not their partners or people to whom they refer me.

Chris

Vickie Pynchon - April 2, 2008 12:35 PM

My real concern is the development of consistent standards of behavior for mediators because I see it as necessary for the development of the profession. I would disclose prior relationships with attorneys for whom I mediate whether formal ethics or professional standards require it or not because I would want to know if I were the mediating attorney. But what I want and know and believe shouldn't necessarily be the STANDARD. And we should, I think, be striving toward a state when we can define good and bad practice and ethical and unethical behavior so that people know what to expect of us as a profession and not simply as the local mediator they prefer. Though I'm a bit of an anarchist, the lawyer in me has an unnatural craving for standards of practice.

beverly drzewiecki - August 16, 2009 1:07 PM

Is it a conflict of interest for a lawyer whom you retained didnt inform you that he previously worked for the judge who was handling a probate case for you. Should this lawyer have informed us that he worked for this judge? Is it legal for a lawyer who wrote and executed a will to change his testimony from his deposition? And is it legal for a lawyer you paid to represent you doesnt contact your witness' for trial and doesn't admit your evidence during trial causing you to loose your case. Also the lawyer whom changed his testimony had been trying to get our mothers property for years. Changed his testimony from the copy of unsigned will he dropped off wasn't even the right copy of our mothers will. He changed his testimony to the copy he dropped off in his deposition was the right and exact duplicate of our mothers will, to the copy that he dropped off wasn't even the right one. This lawyer was also a neighbor of our mother and said he sent her home with the only signed copy of her will. We have letters from him to our mother telling her that he was going to get her 60,000 per acre for her property. While we were in mediation this lawyer who is on the secret judicial misconduct list phoned and offered us approxiamtely $318,000.00 to help us out of our situation. How would this lawyer have known that we were in mediation? My mother has approximately 15 acres next door to the lawyer who wrote her will.

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