Ethical Dilemmas Faced by Mediators*

Explanation

The following was copied with permission from a web page of the Texas Bar Association ADR Section.  The hyperlinks listed will take you to a full explanation of the case in Acrobat Adobe format.

• [21 January 2003]

  As a relatively prolonged mediation session over a business dispute progresses, the parties are "negotiated down" to $75,000 apart. The case involves multiple claims by the plaintiff, each of which is met with a vigorous defense. However, one primary claim is the "crux" of the plaintiff's case. Competing summary judgment motions are pending before the court, the hearing thereon has been held, and the parties are mediating with the knowledge that the ruling by the court on the MSJ's could significantly affect their relative positions. Each is regularly calling the court throughout the mediation to see if the judge has yet ruled on the summary judgment.

  The mediation gets to the point that, in order to avoid an impasse, the parties request the mediator to present a Mediator's Proposal for settlement that each party could either accept or reject. Before the Mediator's Proposal is prepared and presented, the lawyer for the plaintiff informs the mediator that he has just received word that the court granted a partial summary judgment "knocking out" the plaintiff's primary cause of action. He tells the mediator to inform the defendant that he accepts their last offer.

  What, if any, are the ethical issues facing the mediator? What should the mediator do?
   

• [21 January 2003]

  Ordinarily, this column addresses hypothetical problems mediator might face. However, this issue we’ve tried something a little different. We asked four leading Texas Mediators to share with us their “real-life” examples of their most interesting ethical dilemmas faced in mediation and how (or if) they were able to resolve them.
   

• [16 April 2002]

  (1) Is a mediator prohibited, by statute or otherwise, from conducting mediation in which he expresses a judgment or opinion?

  2) Should a party in an evaluative-style mediation (that is, a mediation in which the mediator expresses an opinion or judgment) be required to give informed consent prior to the commencement of the mediation?
   

• [25 January 2002]

  Is it unethical for a mediator to subsequently serve as an arbitrator for the purpose of resolving disputes arising out of the mediated settlement agreement in a family law case? In other types of cases?
   

• [October 2001]

  Is it unethical for a mediator to be unethical? If so, what, in your opinion, constitutes unethical behavior? If not, why not?
   

• [30 January 2001]

  You are contacted by attorneys for the opposing parties about your availability to do a mediation and to determine if you have any conflicts. One of the attorneys involved works for a large local firm. You estimate and subsequently confirm that partners or associates of that firm have participated in 15 to 20% of the mediations you have conducted over the past year. Do you need to disclose that fact to all counsel? If so, how small would the percentage have to be to not require disclosure? If not, how large would the percentage have to be to require disclosure?
   

• [22 August 2000]

  You are contacted by the attorneys about setting up a mediation for a small case. You tell them the fee you would charge per side and reserve a tentative date. Later one of the attorneys calls you to explain that he and his client would like to mediate the case, but they just can't afford the full mediation fee. Can you ethically agree to cut your fee for this party without disclosing it to the other side or reducing the other side's fee to the same level? What if both sides agreed to your original fee but after the successful mediation, you wanted to refund the fee to one side because of the financial hardship being experienced by that side--would this be ethical if done without consent by or refund to the other side?
   

• [26 May 2000]

  You are near the end of a difficult mediation and the negotiation has ground to a halt. Neither side is willing to make further offers. You explore with both sides whether they would be willing to try a mediator's proposal: that is, having the mediator submit a settlement number to the two sides separately. Each side would then say either yes or no, but could not make a counter offer. If both sides accept, the deal would be announced. If one or both sides reject the proposal, neither side would be told how the other responded. Last offers are $150,000 and $85,000. The defendant has already revealed to you in caucus that he would be willing to pay $100,000, but not a penny more, and will not offer the extra $15,000 unless he knew it would settle the case. You don't know what the plaintiff would take, but you think it more likely that plaintiff would accept $100,000 than that defendant would pay more than this amount. When you present the written mediator's proposal of $100,000 in the plaintiff's room, he asks you whether the defendant has said he would agree to it. How should you respond?
   

• [27 January 2000]

  Half way through a day-long divorce mediation, one side presents you (the mediator) with a tape recording of a witness and requests that you play it for the other side in a joint session. You listen to the tape alone first and determine that, in your opinion, it is highly inflammatory and of very little real evidentiary value. You also believe that playing the tape for the other side, especially in a joint session, would seriously jeopardize the mediation. You explain your views in caucus to the party offering the tape, but the attorney and his client are adamant that the tape be played in joint session. Do you play the tape? Why or why not?
   

• [8 December 1999]

  A few days after the end of a mediation that did not result in settlement, you receive a copy of a letter from plaintiff's attorney to the defense attorney. The letter expresses disappointment in how the defendant conducted himself during the mediation and shock at how unreasonable he was. The letter goes on to quote the mediator (you) as having apologized to plaintiff in caucus, saying that the defendant had his head in the sand and just didn't appreciate the situation. As you finish reading the letter your secretary gives you a note that the defense attorney called while you were out and wants you to call him back. The quote attributed to you by plaintiffs' attorney is untrue. What should you do?
   

• [13 July 1999]

  The following problem is another that was posed at the Advanced Mediation Training sponsored by the Association of Attorney-Mediators in Austin on October 23, 1998: Prior to a mediation, the parties and their attorneys approach you about a special fee arrangement. They jointly propose that your fee be based largely on whether or not an agreement is reached: If no agreement, your fee would be $100. If there is an agreement, the fee would be double your normal per diem rate. However, the fee would not be affected by the amount of money paid by either side or any assessment of the value of the settlement to either side. They argue that this arrangement should not be considered a prohibited contingent fee because you will have no self-interest in the amount of any settlement, but solely in whether the case settles at all. Is this arrangement ethical under current ethical guidelines? Should it be considered ethical in potential revisions to current guidelines? Why or why not?
   

• [24 October 1998]

  During a mediation being conducted at the courthouse, the attorney for one side left his caucus room (while the mediator was caucusing with the other side) and filed a motion for contempt in the case being mediated. The attorney then told the mediator (while the mediation was still in progress) that he had filed the contempt motion. What should the mediator do? What should the mediator do if the attorney then served the contempt motion on opposing counsel during the mediation? (Assume the mediator's written ground rules prohibit the service of process on parties during the mediation but do not specifically address the filing of motions or pleadings during the course of the mediation.)
   

• [July 1998]

  At the beginning of a mediation the plaintiff and her attorney tell you as mediator their concern that the defense attorney will control the negotiation and decision-making for the defendant. After several private caucuses with each side, plaintiff's attorney asks you whether defendant is actively participating in his side's private discussions with you and who is running the show in the other room. Your actual observation has been that both defendant and his attorney are fully participating in the caucus discussion and that both are actively involved in how to respond to each offer. Can you tell the plaintiff and her attorney your observation without defendant's express permission?
   

• [April 1998]

  This issue's Ethical Puzzler is really two questions, both of which deal with how the mediator should handle matters relating to his or her economic interest and reputation:

  (A) Plaintiff pays his share of your mediation fee with a check that is later dishonored. All direct efforts to obtain payment through plaintiff and his attorney have failed. Three months have passed. Is it ethical to report plaintiff's hot check to a referring judge? To intervene in the pending civil action to recover the fee? To refer the hot check for criminal prosecution?

  (B) You have learned that counsel has successfully objected to your appointment by a referring judge on the basis of factually erroneous statements: That counsel has never settled cases with you and that you have refused to adjust your fee in response to counsel's request. You have attempted to contact counsel but he will not return your calls. Is it ethical to copy the court and opposing counsel on a letter to the attorney in question addressing the erroneous statements?
   

• [January 1998]

  You are mediating a dispute over a shopping center development. Several neighborhood associations have sued to block city zoning approvals. All sides are represented by attorneys in the mediation. After a day of mediation (with a second session scheduled for a week later), you believe the biggest obstacle to settlement is the attorney representing one of the parties; that attorney will not let you speak directly to his clients and insists that all communication from you be relayed through him. You believe a settlement is in the interests of all parties and that the best chance of achieving a settlement depends on you being able to speak directly to the clients. Is it ethical for you to call the clients between sessions and speak with them directly, if they are willing? Is it ethical for you not to attempt such direct communication with the clients (knowing that such contact would jeopardize future mediation work involving the attorney)? Would your answers be different if you had been allowed to speak directly to the clients at the first mediation session, but still believed you needed to speak with them without their attorney?
   

• [November 1997]

  At the end of a mediation the parties have reached an oral agreement and desire to reduce it to writing. They request the mediator to draft a deal point memorandum for signing. Is it appropriate for the mediator to perform this function? Would the answer change if the parties wanted the mediator to draft the definitive formal settlement agreement during the mediation? (Assume that the mediator has obtained the parties' agreement in writing at the outset of the mediation that if he prepares a draft agreement, that each party should have his attorney independently review and approve the settlement agreement, and the attorneys agree to make such an independent review.)

  * Copied with permission for your convenience from a State Bar of Texas ADR Section web page