The Bencher | September/October 2024
Mediator Ethics: A Primer for Attorneys and Judges
By Mary Kate Coleman, Esquire
One of the many benefits of my membership in the American Inns of Court over the years has been the emphasis on ethics, either in programs presented by our Inn or in articles published in The Bencher. The emphasis on ethics in our pupillage group programs is usually on attorney conduct and entails a study of the rules of professional conduct for our state. In the case of articles in The Bencher, the emphasis is usually on the American Bar Association (ABA) Model Rules of Professional Conduct and case law.
With the growth of alternate dispute resolution (ADR) in recent years, many civil litigators, like me, have been serving as mediators or acting as advocates in mediation. Increasingly, judges have been referring cases to mediation. It has been my experience that many attorneys and judges are unaware that Model Standards of Conduct for Mediators exist.
In this article I will highlight and summarize portions of these standards that may be of interest to attorneys serving as mediators, attorneys representing clients in mediation, and judges. Being familiar with these ethical standards will result in a better understanding of the mediation process and in better mediations.
Background
The standards were originally prepared in 1994. In 2005, they were revised and approved by the American Arbitration Association, the American Bar Association, and the Association for Conflict Resolution. The preamble to the standards states that “they serve three primary goals: to guide the conduct of mediators; to inform the mediating parties; and to promote public confidence in mediation as a process for resolving disputes.”
The “note on construction” states that the standards do not have the force of law, unless and until a court or other regulatory authority adopts them. “Nonetheless, the fact that these standards have been adopted by the respective sponsoring entities should alert mediators to the fact that the standards might be viewed as establishing a standard of care for mediators.” Thus, it is important that attorneys who serve as mediators be familiar with the standards. Because they serve as ethical guidelines for mediators and affect how mediations are conducted, attorneys that serve as advocates in mediation and judges should have an understanding of the standards.
There are nine standards: Self-determination, Impartiality, Conflicts of Interest, Competence, Confidentiality, Quality of the Process, Advertising and Solicitation, Fees and Other Charges, and Advancement of Mediation Practice. View a PDF of the standards at https://bit.ly/ADR-Standards.
Self-determination
The preamble notes “mediation is a process in which an impartial third party facilitates communication and negotiation and promotes voluntary decision making by the parties to the dispute.” Thus, it is appropriate that the first standard is self-determination, which is “the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome.” The concept of self-determination is woven throughout the remaining standards.
Self-determination comes into play in many ways. The decision to go into mediation and the decision as to who to choose as a mediator are both voluntary decisions, in the absence of a mandatory court-annexed mediation program.
Parties should be able to make decisions as to the process (the way the mediation is conducted) and outcome. In one instance where I served as a mediator, the mediation had progressed to the point where the parties felt that a joint session would further negotiations. Consequently, I dispensed with shuttling back and forth between the parties and facilitated face-to-face settlement discussions.
Also, parties should feel that the outcome is one they have chosen and not a decision imposed on them by the mediator. In my opening remarks, I always tell the parties that I have no power to force them to do anything and that the power to make decisions about their matter remains with them.
Impartiality
Impartiality is the second of the nine standards. According to this standard, “a mediator shall conduct a mediation in an impartial manner and avoid conduct that gives the appearance of partiality.” The advice that I was given in one of my mediation trainings, and that I follow, is that while it might be natural for the mediator to come to like one party more than the other during the course of the mediation, the mediator cannot show favoritism and must be impartial as to the outcome of the dispute.
Similarly, a mediator must be aware of the issue of appearance of partiality. When conducting mediations, I try to be mindful of my demeanor and interactions with the parties. For example, I try to avoid any interaction with one party that may appear biased toward that party in the eyes of the other side.
It also is important for the mediator to not accept gifts or other items of value that would raise a question as to the mediator’s actual or perceived impartiality. However, a mediator may accept de minimis gifts or incidental items or services that are provided to facilitate a mediation so long as this does not raise questions as to a mediator’s actual or perceived impartiality.
In my opinion, it is okay for a mediator to accept a soft drink or sandwich paid for by a party hosting the mediation session because these items have nominal value and the purpose of eating in may be to avoid the down time associated with a lunch break. However, for the mediator to accept something of a higher value and unrelated to facilitating the mediation, such as theater tickets or tickets to a sporting event, is another matter.
Conflicts of Interest
The subject of conflicts of interest is addressed in the third standard, which states “a mediator shall avoid a conflict of interest or the appearance of a conflict of interest during and after a mediation.” A conflict can arise in any number of ways and reasonably raises a question as to the mediator’s impartiality. A common way a conflict could arise is from a relationship between a mediator and a mediation participant.
I handle conflicts checks with respect to my work as a mediator similar to how I handle conflict checks for new litigation cases. To avoid a conflict of interest, I always review the docket or pleadings for party names and the names of their attorneys before agreeing to serve as a mediator. I also review this information with our firm administrator to ensure that no conflict exists.
Competence
Competence is the fourth standard. Consistent with the concept of party self-determination, this standard does not define what makes a person competent to be chosen as a mediator. Rather, it states, “a mediator shall mediate only when the mediator has the necessary competence to satisfy the reasonable expectations of the parties.” The standard notes that mediator competency is often based on training, experience in mediation, skills, cultural understandings, and other qualities.
There are many different trainings available for individuals interested in becoming mediators. The trainings vary in terms of the approach to mediation that is taught (discussed below) and length of training. Many mediators view completing a 40-hour training as being the minimum amount of training an individual should have before attempting to mediate a case. In addition to classroom lecture, these 40-hour trainings usually include role-playing components in which the attendees conduct and participate in mock mediations.
Court-annexed mediation programs and private providers of mediation services often have their own criteria that mediators must meet to be on their panels, which may include, in addition to specific training requirements, experience mediating or co-mediating a certain number or type of cases.
This standard also encourages mediators to attend educational programs to maintain and enhance their knowledge and skills. Many such educational programs exist on national, state, and local levels and often offer continuing legal education credits. The ABA, for example, has a Dispute Resolution Section that sponsors programs that offer opportunities to maintain and enhance mediator knowledge and skills.
Whatever the mediator’s background is, the mediator should have that information available for the parties. Additionally, according to Subsection A (3) of this standard, a mediator should be able to tell a prospective user of his or her services, if asked, what approach the mediator takes to conducting a mediation.
It should be noted that there are different ways to conduct a mediation. Some mediators are facilitative mediators (assisting with negotiations often by meeting with the parties separately, exploring interests and needs, and carrying offers and demands back and forth between the parties); some are transformative mediators (focusing on the relationship between the parties and on them having a constructive conversation while often keeping the parties together in one room), and some are evaluative mediators (evaluating the strengths and weaknesses of a case and often giving an opinion on liability and damage issues). Some mediators are trained in more than one type of mediation approach. Additionally, many mediators have their own style that may be a blend of these different approaches. Sometimes a court-annexed mediation program or private provider requires that its mediators use a certain mediation model or style.
It is important for an attorney representing a party in a mediation to have a basic understanding of these approaches to mediation and to give some thought as to what type of approach would be most helpful for the case. Unless there is a provider or program prohibition on ex parte communications with the mediator, the attorney representing a party in mediation should feel free to have a discussion with the mediator about how the mediator plans to conduct the mediation in the initial phone call to the mediator.
Confidentiality
Confidentiality is the fifth standard and is the hallmark of mediation. In my mind, this standard may be the most important because many people go to mediation to resolve their differences privately. Section A of this standard provides that “a mediator shall maintain the confidentiality of all information obtained by the mediator in mediation, unless otherwise agreed to by the parties or required by applicable law.”
Confidentiality may come into play in a couple of ways. The issue of confidentiality may arise when the mediator has a private caucus (or meeting) with a party. The party may wish to impart information to the mediator in confidence, and Section B of the standard requires the mediator to honor a request for confidentiality. Confidentiality is important in mediation because it permits parties to candidly discuss the strengths and weaknesses of the case, as well as possible resolutions with the mediator.
Attorneys representing parties in mediation should be aware that mediators have different ways of handling confidentiality in private caucus. Some mediators make it a ground rule in the initial joint session that the mediator will work on the assumption that anything a party says to the mediator in private caucus may be shared with the other side unless the party sharing the information specifically requests that the information be kept confidential. Other mediators treat all conversations in private caucus as confidential and will seek agreement with the disclosing party before leaving the room as to what may be shared with the other side. Regardless of what the mediator’s practice is as to confidentiality, it is important that everyone involved in the mediation have a clear understanding as to what that practice is.
Confidentiality issues also may arise in court-annexed mediation programs when cases are assigned to mediation by a judge. This standard addresses this situation. With limited exceptions, the mediator is not permitted to tell the judge what happened during the mediation.
Generally speaking, mediators in court-annexed mediation programs are permitted to disclose to the court whether the parties appeared at a mediation, whether or not the parties reached a resolution, and anything else that the parties have given permission for the mediator to disclose to the court. The mediator usually provides this information to the court on a form report after the mediation.
Local court rules or procedures and state mediation confidentiality statutes usually address what type of information is permitted to be disclosed. Attorneys acting as mediators and attorneys representing parties in mediation need to be familiar with such rules, procedures, and statutes. Judges also need to be familiar with the concept of mediation confidentiality so as to avoid hearing testimony about what happened during the mediation.
Quality of the Process
Section A of the sixth standard, quality of process, requires a mediator to conduct a mediation in accordance with the standards and in a way that promotes, among other things, the “presence of the appropriate participants.” Subsection A (3) further states, “the presence or absence of persons at a mediation depends on the agreement of the parties and the mediator. The parties and mediator may agree that others may be excluded from particular sessions or from all sessions.”
It is important to have the parties or other decision-makers present at the mediation because they are the ones that have the authority to resolve the matter. Often, court rules or procedures specify who needs to attend the mediation and impose sanctions if the appropriate person is not in attendance.
One way the mediator can ensure that the appropriate persons are in attendance is by holding a pre-mediation phone conference with the attorneys and discussing the issue of who should be at the mediation. If both sides can agree on who will participate in the mediation, there will be no unpleasant surprises on the day of the mediation and the mediation session is more likely to be productive.
Consistent with the concept of self-determination, the parties and mediator may decide to exclude a person from some or all of the sessions. An example of when this might occur is in a sexual harassment case. The plaintiff may not wish to be in the same room with the alleged harasser. Safety considerations may be a factor in deciding whom to include in mediation sessions.
Advertising and Solicitation
The concepts behind this standard should be familiar to attorneys and do not merit extensive discussion. However, there are three points pertaining to advertising and solicitation that are worth highlighting.
First, Section A states that “a mediator shall be truthful and not misleading when advertising, soliciting or otherwise communicating the mediator’s qualifications, experience, services and fees.” Second, Subsection A (2) of the standard states that “a mediator should only claim to meet the mediator qualifications of a governmental entity…if that entity…has a recognized procedure for qualifying mediators and it grants such status to the mediator.” Finally, Section C prohibits a mediator from communicating to others in promotional materials or otherwise “…the names of persons served without their permission.”
Fees and Other Charges
Mediators are encouraged to put their fee arrangements in writing unless the parties request otherwise, according to Subsection A (2) of the eighth standard. This subsection furthers the mandate of Section A that requires mediators to provide true and complete information about fees, expenses, and any other charges that may be incurred in connection with the mediation.
The second part of this standard prohibits a mediator from charging fees in a manner that compromises a mediator’s impartiality. It discusses scenarios in which this could occur.
First, this standard addresses mediator contingent fee agreements. Section B (1) states that “a mediator should not enter into a fee agreement which is contingent upon the result of the mediation or amount of the settlement.” Query whether a mediator could be impartial if he or she receives a percentage of the settlement as his or her fee.
Second, this standard addresses the issue of dividing the mediator’s fees among the parties. While the mediator is permitted to receive unequal fee payments from the parties, the mediator should not permit such an arrangement to adversely impact his or her ability to conduct the mediation in an impartial manner.
Advancement of Mediation Practice
Finally, mediators are encouraged to act in a fashion that advances the practice of mediation. One way a mediator can advance the practice of mediation is by assisting newer mediators through training and mentoring.
New mediators are trained and mentored by permitting them to observe mediations or to co-mediate with a more experienced mediator. If an observation or co-mediation is to occur, the experienced mediator will obtain the permission of the attorneys and parties beforehand and the mediator in training will be bound by the same confidentiality rules as the mediator. Attorneys and their clients are encouraged to permit observations and co-mediations.
When I was starting out, I was permitted to co-mediate with experienced mediators and observe mediations. These opportunities contributed to my professional growth. Now, when I have observers at my mediations, I tell the parties that the mediators in training are watching me and not them.
Review the Standards
This article highlights and summarizes portions of the Model Standards of Conduct for Mediators that I have seen come up most often in my practice or that I thought would be of interest to other attorneys and judges. By no means is this article intended to be an exhaustive discussion of all the issues that could arise under the standards, so I encourage you to review the standards in their entirety. You should also familiarize yourself with any statutes, rules, and procedures that may be applicable in the jurisdiction. With mediation being used more frequently, attorneys and judges are advised to become knowledgeable about mediator ethics. Having an understanding of mediator ethics will lead to a better understanding of the process and better mediations.
Mary Kate Coleman, Esquire, of the law firm Riley, Hewitt, Witte & Romano, P.C. in Pittsburgh, Pennsylvania, is a Master of the Bench in the Hay-Sell Pittsburgh American Inn of Court. She currently co-chairs the Pennsylvania Bar Association’s Alternative Dispute Resolution Committee. In 2022, Coleman received the Pennsylvania Bar Association Alternative Dispute Resolution Committee’s Sir Francis Bacon Dispute Resolution Award.
—This article was originally published in the March/April 2010 issue of The Bencher.