What's New
Howard Bellman: Views on Society and Conflict - Video (7/03/10)
Howard Bellman Howard Bellman describes his politics regarding mediation and conflict within a society. His view is that a society should be diverse and accepting of different opinions and viewpoints, a society where conflict is allowed, yet they are addressed.
The 5th Step: ABA ADR Ethics Resources (6/28/10)
Marnie Huff Troubled by a mediation ethics enigma? State ADR rules a little vague? Marnie Huff urges mediators to take advantage of the free online ADR ethics resources available from the American Bar Association Section of Dispute Resolution.
Mediators Drafting Settlement Documents (5/31/10)
Steve Mehta There is considerable debate amongst the mediation community as to whether a mediator can draft documents for the parties. Some mediators say that doing so leads to them practicing law, whereas others say that they aren’t practicing law by merely being a scrivener. The Wisconsin Bar recently published an ethics opinion on this very issue. I thought that it might be interesting to review. It provides a nice summary of many of the States’ opinions on this issue. The following is an excerpt of that opinion:
(5/20/10)
Keith Seat
The Florida Supreme Court has amended its rules relating to marketing for certified and court-appointed mediators. The Court concluded that retired judges may not use the title “judge” in marketing their mediation services, including letterhead and business cards, and may not appear in judicial robes in advertisements for mediation. Further, mediators may not suggest that prior judicial experience makes a better or more qualified mediator. In addition, new provisions in the rules limit how mediators may assert they are certified.
In re: Amendments to Florida Rules for Certified and Court-Appointed Mediators, No. SC09-1384 (Fla. April 1, 2010)
(5/19/10)
Keith Seat
A federal district court in California declined to sanction plaintiffs’ counsel for refusing to interpret so a mediator could present settlement offers and explanations directly to Spanish-speaking plaintiffs during a mediation which did not settle. The court rejected defendant’s argument that plaintiffs’ counsel did not mediate in good faith, noting that the mediation was not court ordered and there was no indication that direct communication would have resulted in settlement. The court suggested that if the mediator or the defendant felt that direct communication with plaintiffs was critical they should have ensured that an interpreter would be present during the mediation.
EEOC v. ABM Industries, Inc., No. 1:07-cv-01428 (E.D. Cal., March 3, 2010) (Subscription Required)
How Voluntary Is Public Policy Consensus Building? (5/10/10)
John Folk-Williams Voluntary participation is an essential dimension of mediation, consensus-building and the many other forms of collaborative public policy – at least in theory. But even with so basic a part of the concept of collaboration as its voluntary nature, the realities of practice can depart sharply from the ideal.
Reflections From The Alberta Arbitration And Mediation Society (4/26/10)
Jan Frankel Schau Sunday, April 25, 2010
Reflections from the Alberta Arbitration and Mediation Society
I was honored to be invited to present two talks at the Alberta Arbitration and Mediation Society's Annual Conference in Edmonton last week. The President, Pat Withers, had heard about my presentation at the ABA Dispute Resolution Section's Conference in 2009 on Ethics and Mediation and was excited to have me do a reprise.
Understanding Mediators' Orientations, Strategies, And Techniques: A Grid For The Perplexed (4/05/10)
Leonard Riskin This Article begins with a review of previous efforts to categorize mediation and their shortfalls, including the lack of any widely-shared comprehensive method for describing the various approaches to mediation practice. The Article then offers a new "grid" system for classifying mediator orientations, strategies, and techniques and describes the potential utility of the grid, particularly its effectiveness in selecting mediators.
(3/16/10)
Keith Seat
A California appellate court concluded that a mediator was shielded by absolute quasi-judicial immunity regardless of whether he was mediating or arbitrating in Phillips v. JAMS (Cal. App. 2d Dist.). The mediator had agreed in a previous mediation settlement to make a binding decision for the parties if future disputes arose. The mediator tried to mediate a subsequent dispute, in the midst of which he felt he was being abused by aggressive counsel and announced he could no longer be impartial and was not going to make a binding decision, even if the parties could not reach a mediated resolution. Litigation followed, but the appellate court affirmed summary judgment dismissing claims against the mediator and his sponsoring organization, concluding that litigation is not allowable against those providing dispute resolution services which are connected to the judicial process. The court held that, “[a]ll functions integral to the dispute resolution process are shielded by absolute immunity.”
Phillips v. JAMS (Cal. App. 2d Dist. January 28, 2010)
Terry Wakeen: Being Neutral is a Myth - Video (3/16/10)
Teresa Wakeen Terry Wakeen explains that she believes being neutral is a myth. She still upholds her ethical duty, however, to not force her opinions and judgments on the parties.
(2/23/10)
Keith Seat
Mediators are concerned over provisions in new Texas legislation which would require them to report parties who act in “bad faith” in mediations involving balance billing. The new legislation allows insured patients to mediate whenever they would have to pay over $1,000 for services of out-of-network doctors received at in-network hospitals. In an effort to compel serious mediation efforts, the law includes a requirement for reporting bad faith conduct, without providing standards. The Texas Department of Insurance is drafting rules to implement the statute, which is to take effect in September 2010. Mediators hope to get the bad faith reporting requirement adjusted in the regulations in order to maintain neutrality.
Dallas Morning News (January 26, 2010)
Notable U.S. Mediation Cases (2/09/10)
Keith Seat This article, by Mediate.com News Editor Keith Seat, summarizes recent legal cases involving mediation from around the U.S.
(1/19/10)
Keith Seat
Sanctions against a doctor for refusing to waive a “consent to settle” provision in court-ordered mediation of a medical malpractice case were overturned by an Ohio appellate court based on mediation confidentiality. The court concluded that a statement by the doctor’s counsel that the doctor had never given consent to settle the case was a privileged mediation communication which could not be used to determine bad faith. None of the exceptions to the privilege applied. A concurring opinion added that a doctor refusing to waive a consent to settle provision is no different than any party refusing to make a monetary offer of settlement, which is permissible. Nor is there any obligation on a party to inform the other side at the beginning of mediation that they have no intention to make an offer, as positions may well shift during the course of the mediation.
Anthony v. Andrews, No. 2008-P-0091 (Ohio App. 11 Dist., December 7, 2009)
(1/19/10)
Keith Seat
Despite assertions of mediation confidentiality, an Indiana appellate court affirmed the trial court’s order requiring disclosure of the amount of a mediated settlement agreement in a related case. The court simply focused on the evidentiary rule that compromising a claim is not admissible to prove liability, but is admissible for other purposes, such as determining the amount to garnish in the case before the court.
Buchanan v. Consolidated Brokers Corp., 2009 WL 3518003 (Ind. App., October 30, 2009)
(12/01/09)
Keith Seat
The Ethics Committee of the North Carolina State Bar is proposing to amend Rule 8.3 of the Rules of Professional Conduct to expressly exempt lawyer-mediators from the general duty to report questions about another lawyer's “honesty, trustworthiness or fitness as a lawyer” during mediation. Concerns have been raised about the potential conflict between requiring lawyer-mediators to report such questions and also to maintain the confidentiality of all information obtained in the mediation process. The Ethics Committee plans to publish the proposed rule change, receive comments on the proposal and possibly recommend to the State Bar Council that it adopt the change in January.
North Carolina Lawyers Weekly (November 2, 2009); Rule 8.3
(12/01/09)
Keith Seat
A split California appellate court established a judicial exception to the state’s mediation confidentiality statute by permitting a party to use evidence from his private communications with his attorneys during a mediation in a later action for legal malpractice. The court concluded that private conversations during the mediation between the attorneys and client that did not involve the mediator or other party and did not reveal anything said or done in mediation discussions with the mediator or other party should not be shielded by mediation confidentiality. The alleged malpractice involved claims that the client’s counsel forced him to settle for too little; the terms of the signed settlement agreement were thus available. The dissent objected to any judicial exception to the confidentiality statute, regardless of its desirability.
Cassel v. Superior Court, 2009 WL 3766430 (Cal. App. 2 Dist. November 12, 2009)
(12/01/09)
Keith Seat
The federal district court in Oregon granted summary judgment to a lawyer against claims by his clients that he had committed malpractice by advising them against settling a case in mediation that they subsequently lost in court, because the evidence against the lawyer was inadmissible due to the state’s mediation confidentiality statute. The court did not determine whether private conversations between the attorney and his clients were covered by the confidentiality requirements, but concluded that the clients had no case where they could not reveal the proposed settlement terms.
Fehr v. Kennedy, 2009 WL 2244193 (D. Ore. July 24, 2009) (Subscription Required)
Ethics And Best Practices For Mediation Provider Organizations: 7 Years After Georgetown (11/17/09)
Diane J. Levin As readers of this blog know, the private practice of mediation in the United States remains unregulated by government. Arguably, this absence of formal regulation, licensing, and credentialing does not diminish mediation’s standing as a profession. It does, however, place weighty responsibility on the shoulders of U.S. mediators, collectively and individually, to protect the reputation of the profession and to build public confidence in mediation services.
Mediator's Ethics: Does It Include A Just Outcome For The Disputants? (11/09/09)
Jan Frankel Schau Yesterday I attended the Southern California Mediation Association's 21st Annual Conference. The piece by Professor/Dean Peter Robinson of The Straus Institute of Dispute Resolution at Pepperdine University really caused me to examine my practice.
More Like Guidelines: Ethical Standards Of Conduct For Mediators Considered (10/12/09)
Diane J. Levin Some of you, particularly those with children, no doubt remember “Pirates of the Caribbean“, a 2003 movie based upon a Disneyland theme park ride. In one scene, the movie’s heroine attempts to parley with the villainous pirate captain, invoking the protection of the Pirate Code, a kind of seafaring Model Rules of Professional Conduct. He sneers at her entreaties, dismissing the Code as “more what you’d call ‘guidelines’ than actual rules”.
(8/25/09)
Keith Seat
Six years after mediation resulted in a settlement, the parties sought testimony from the mediator about whether the settlement had been achieved through economic duress. The mediator objected, but the U.K.’s Technology and Construction Court ruled that the mediator must testify in Farm Assist Limited v. Secretary of State for Environment, Food and Rural Affairs (No. 2), [2009] EWHC 1102 (TCC). The court concluded that mediation confidentiality can be waived by the court in the interests of justice. The court analyzed other applicable privileges and concluded that even if there is a mediation privilege, it may be waived by the parties without the consent of the mediator. The court sidestepped the mediation agreement, which provided that the mediator could not be called as a witness in any litigation relating to the dispute, reasoning that the issue of economic duress was distinct from the underlying dispute.
Farm Assist Limited v. Secretary of State for Environment, Food and Rural Affairs (No. 2), [2009] EWHC 1102 (TCC); Mondaq (July 8, 2009) (Subscription Required)
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