More and more frequently I hear complaints about mediators who tell their clients what is or is not acceptable, particularly for settlements in divorce cases. I was on a flight from Chicago to Seattle in mid-December when I learned that my seat mate had recently been through divorce mediation here in Washington. He angrily described how the mediator had ignored how he and his ex-wife wanted to divide their property, told them their agreed upon plan was unacceptable and instead told them how they would divide it. The mediator apparently gave no indication as to why she was being so insistent. Acceptable to whom? The mediator? A referring attorney? The courts? I would normally think of this as an isolated complaint or aberration, except that I am hearing of this tendency more and more frequently. So much for self-determination and impartiality!
Twenty years ago few people knew what a mediator was or what it was mediators did. That has changed as more and more people hang out shingles as mediators and more and more people turn to mediators for help, resulting in a growing awareness of mediation and how it is supposed to work. While most mediators are well trained and operate within well-delineated ethical boundaries, it seems that a few are succumbing to the temptation to run not just the process, but to determine the outcome as well.
Yes, I well know that in some things such as child support there is little wiggle room, but that is not from where the complaints are emanating. Instead, the issues I am being told of include areas where the courts really don’t much care what the clients do as long as they agree on it.
Why would a mediator short-circuit the process? Well, it could be that it’s faster. For those trying to make a living at mediation and in particular doing so with divorce and parenting plan mediations, there can be the temptation to shorten the process in favor of higher client volume – a set of paying clients in the morning and another set of paying clients in the afternoon has its attractions.
A second option could be that the particular mediator believes that he or she knows what works well and so pushes the clients to accept it. Within this same subset are a few who may see these cases, with their child support formulae and checklist parenting plans, as a quick exercise in fill-in-the-blank mediation, which is hardly mediation at all.
There is another, more troubling, possibility that we must consider. A few mediators seem to have created relationships with attorneys where the mediators deliver what the attorneys want in return for continuing referrals. If what the clients want clashes with what a referring lawyer may want, the mediator may surrender to the temptation to throw impartiality out the window in favor of paying the bills. By knowing and fulfilling what the specific attorneys think is best for the client, the mediators are assured of a steady flow of client referrals. Unfortunately, it becomes a symbiotic relationship, and the temptation is to do what is necessary to keep the relationship going. This is NOT the fault of the attorneys, who are representing their clients with due diligence as required by the canons of law – their job is to get their clients the best settlement available, not the most agreeable settlement for all. It does take considerable creativity and nuance out of the equation of what is, or is not, self-determination, though.
It is ethically problematic for mediators, however. An increasing number of mediators rely on attorneys for client referrals and so it only makes sense that the mediators would perhaps bend more towards keeping the referring lawyers happy than in helping the clients do what they wish and what works best for them, particularly in those cases where the other party is operating pro se. In this instance, the pro se client may be victimized by none other than the mediator, and never know it. A steady cash flow can have a way of trumping the ethics of impartiality.
Now couple this with the fact that few states, including Washington where I am, have any sort of regulatory or oversight responsibilities over mediators and the potentials for abuse become obvious. Yes, there are codes of ethics which state clearly the premise of self-determination in helping the parties reach a voluntary, uncoerced agreement. There is even a footnote in the Association for Conflict Resolution and Washington Mediation Association Standards of Practice stating, “Telling the parties what they can or cannot agree to, except when in violation of law or local court rules violates the principle of self-determination.”
Linked tightly to this is a real possibility of the mediator not disclosing a conflict of interest. I would submit that the relationship between the mediator and the referring attorney must be disclosed as it constitutes a potential conflict of interest. Let the clients decide. I believe that most mediators do disclose under these circumstances, but I am told that this is not always the case, and it is these few who concern me.
I have been a mediator for more than 20 years, and my use of mediation in labor/employer situations goes back to 1976. My experience is that the vast majority of mediators are completely ethical and deeply aware and conscientious of their ability to influence mediated agreements. I know how difficult it is to make a living as an interpersonal mediator, and I do not envy those who attempt it. Even the vast majority of those who do try to make a living from mediating are highly ethical in thought and practice. However, it is rarely the ethical majority who receive attention when the public becomes aware of unethical behavior. Rather, it is the few who abuse and skirt ethical norms who inspire legislative wrath – and regulation – upon all of us.
I’m reviewing The Negotiator’s Fieldbook: The Desk Reference for the Experienced Negotiator, Christopher Honeyman & Andrea Kupfer Schneider, Editors (ABA 2006), through 2008 (it has 80 chapters, more than 700...By Gini Nelson