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Ethics and the Role of a Mediator

Introduction

Two hypotheticals:

1 -- You, as a mediator in a personal injury case, are in a separate caucus and one side's representative comments that they have no authority and are at the mediation purely to see how low the other side will go.

2 -- You, as a mediator in a property sale/purchase matter, are in separate caucus and the purchaser states that while the seller thinks the property is going to be preserved as a historic site, the buyers intend to bulldoze it as soon as the paperwork is signed.

What should you do?

Identifying The Hidden Issues

The first hypothetical, the "adjuster without authority" hypo actually has three different questions and is three separate problems.  The issue areas are:

  1. Procedure
  2. Fraud
  3. Abuse of Process


The mediator's response to each of the three issues depends on who the mediator is, which process he is committed to and what mediation is.

Is the mediator a Judicial Officer, acting in loco parentis for the Court or is the mediator a Withdrawn Neutral?  

Is the mediation process Participatory or is the mediator's role Content Free?

Is mediation an Equity Process or is it a Negotiation Conference?

Which is Right?

Currently, no model is right and no model is wrong -- as long as the parties know what they are getting into before the ethical issues arise.  The ethical issues raised in the hypotheticals above only give a mediator trouble if the mediator's role is not clearly defined before the mediation begins.

Most mediators think they fall into one of two styles, though the majority actually act as members of a third style.

The first, the "Fiber optic cable mediator," is a Withdrawn Neutral whose role is to transfer information, Content Free, in a Negotiation Conference with the parties seeking their own best interest.  Such a mediator is a part of the process, like the furniture, and owes the same duties as the furniture -- if the mediator has clearly made the parties aware of the mediator's function and role.  Such a mediator does not intervene when the system is abused (or "tooled") because intervention destroys the system.  They are easy to blame, but they are also easy to appreciate.

The second, the "Court Officer mediator," is a Judicial Officer whose role is to Participate and to see that Equity is done.  Such a mediator will report to the Court when fraud or lack of authority are present (often with sanctions against one party or the other), prevent fraud or abuse, and seek to find the "right" resolution.  Such a mediator intervenes in order to make the justice system just. and seeks to impose settlement  They are easy to hate.

The third, the "Filter mediator," is a "fiber optic cable mediator" who is a Neutral whose role is to aid the parties in exploring the settlement options and to filter out noise from the settlement negotiations.

None of these models are "right" -- but each of them can lead a mediator to do things that are wrong.

Avoiding Problems

(A) a mediator decides what their role is and then a mediator avoids problems and answers the ethics questions by:

  1. deciding what the mediator's role is in mediation;
  2. informing the parties what that role is;
  3. obtaining the agreement of the parties to the mediator serving in that role;
  4. before the process begins.  (Ideally, before the parties are committed to a mediation date).
  5. If the mediation is court annexed, the Court should also know and affirm the mediator's role.

(B) a mediator sets procedural guidelines and avoids problems by:

  1. Providing the parties with the procedural guidelines in advance of the mediation;
  2. Including role information in the guidelines;
  3. Following the guidelines.

Note that most guidelines are set forth in Court orders referring the matter to mediation or in the mediation agreement signed and returned by the parties prior to the convening of a mediation session.

Application

1--You, as a mediator in a personal injury case, are in a separate caucus and one side's representative comments that they have no authority and are at the mediation purely to see how low the other side will go.

If the mediator is properly prepared, this becomes merely a procedural matter.  The mediator's guidelines in the contract or Court's order should include a requirement as to who must attend.  If the proper parties are not in attendance, then the mediator may inform the side that does not have the necessary parties attending that the mediation will need to be recessed until that person attends unless the other side agrees to go forward without the proper person in attendance.  If the mediator is also responsible to report to the Court, the mediator does so.  If, on the other hand, the Court's referring order clearly states that the mediator is not to report anything to the Court, or only report whether or not the case settled, then the mediator reports nothing to the Court.  (*practice tip*  If your court's do not use orders that include language of this type, submit proposed orders for the court's use that do.  A court order clears up a large number of questions).

2--You, as a mediator in a property sale/purchase matter, are in separate caucus and the purchaser states that while the seller thinks the property is going to be preserved as a historic site, the buyers intend to bulldoze it as soon as the paperwork is signed.

More and more commercial property deals are bringing in mediators to make the matters go more smoothly and to speed up closings.  A mediator can add significant value to such a transaction.  When inequity arises, or fraud in the process, the mediator's agreed role becomes important.  

If a community center mediation was used, most of them start out explaining that they will explore values with each side and work towards a settlement that meets the goals and values of the parties.  In such a mediation, the sellers will never get the chance to be overreached as their values (preserving the historic site) are clearly put on the table.  The mediator has no chance to be abuse or the system co-opted.  A Court Officer mediator also clearly warns the parties to expect certain types of behavior to be revealed.  No confidences are breached in such a system when the disclosure is pre-approved by the terms of the mediation.  On the other hand, a Withdrawn Neutral has warned the parties that they are looking out for themselves, the neutral is just allowing it to happen faster in a less expensive fashion.

The only time that there is a problem is when the mediator decides to change roles or not live up to their duties (e.g. a Withdrawn Neutral suddenly decides to explore core values with the seller; a Court Officer decides that the price is fair, the new building project worthwhile and the whiny seller needs to move on and sign the paperwork, etc.).

Conclusions

Most mediation problems and issues arise because the mediators lack structural support and a clear understanding of what type of mediator they are.  As mediation becomes a more mature area of practice and as the functional framework of mediation is better understood, most of the common problems and issues should be resolved.  The only real issue that remains, and by far the hardest, is the issue of just which model (if any) is right and why.

We still have many more questions to answer before we can approach that question.

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Copyright 2000 Stephen R. Marsh

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