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When Mediation Conduct Goes Wrong

When Mediation Conduct Goes Wrong

What can be done about abusive or otherwise unethical conduct by mediators or other mediation participants? The answer to this question begins with acknowledging that all participants in the mediation process have the right to expect a fair and peaceful dispute resolution process and that all participants are responsible for avoiding and quickly addressing any conduct that jeopardizes the success of that process

The American Bar Association’s (ABA) guidelines for litigation conduct apply equally to mediation:

 … [A]ll participants in a legal proceeding [are owed] respect, diligence, punctuality, and protection against unjust and improper criticism or attack. Conduct that may be characterized as uncivil, abrasive, abusive, hostile, or obstructive impedes the fundamental goal of resolving disputes rationally, peacefully, and efficiently. Such conduct tends to delay and often to deny justice.[1] (Emphasis added.)

How to deal with the offending conduct may differ if the conduct is that of the mediator rather than of a lawyer or a party. But dealing with it is essential.

Mediators Who Deviate From Their Ethical Obligations

There are rules governing mediator conduct.

JAMS trains and requires its mediators to abide by specific codes of ethics. Similar model standards of conduct for mediators have been adopted by the American Arbitration Association, ABA and Association for Conflict Resolution. Many states, state bar associations and court systems also have ethical standards for mediators practicing within their jurisdictions. These rules invariably require mediators to act with patience, courtesy and impartiality toward all participants, and to maintain a process that ensures confidential and autonomous party decision-making.[2] Mediation participants have a right to expect and require mediator compliance with these rules.

Conduct that shows bias (e.g., acting condescendingly, ignoring a position, gaslighting someone’s concerns, treating one person or side with more respect than another) frustrates that expectation. Similarly, if a mediator appears to exercise control or influence over the proceeding to steer it in favor of one of the participants, the mediator’s effectiveness may be compromised. Conduct that implies the mediator will violate confidentiality by “telling the judge” a party is not participating fully or fairly, acting unduly friendly to one side, providing legal advice to one party or offering unsolicited evaluative opinions of a party’s arguments is evidence of partiality and imperils the mediation process. Moreover, all such conduct violates a mediator’s ethical duties to treat the parties respectfully, remain impartial and safeguard the parties’ rights of self-determination.

There are remedies for improper mediator conduct.

What can a participant do if a mediator is abusive, rude or overbearing, or otherwise engages in inappropriate conduct? Depending on the circumstances, a stepped approach may work best, beginning with a respectful, private discussion with the mediator to explain how the mediator’s conduct may—unintentionally—be creating an environment that is making the process less effective. If this approach does not result in immediate correction, a more direct discussion with the mediator may be needed, outlining the ethical ramifications of the problematic conduct and the concerns it has caused counsel and client.

In more extreme circumstances, where the mediator’s conduct is such that counsel and client believe it is counterproductive to continue, they have the right to and should unilaterally adjourn the mediation. Counsel also should report the mediator’s offensive conduct to the mediator’s administrative organization, if any, as private providers want their mediators to be—and to be viewed as—fair and impartial. Additionally, in some states, especially egregious behavior may be reported to official organizations vested with regulatory authority, including sanctioning power, over mediators.

[3]Offending Conduct by Counsel or the Parties

The rules require mediators to address unethical conduct.

Unfortunately, sometimes parties or counsel engage in various levels of aggression; belittling, disrespectful or disparaging comments and argument; or even active misrepresentation. Such conduct may violate ethical rules governing the practice of law by the implicated counsel; it also triggers the mediator’s obligation to safeguard the fairness of the mediation process and its integrity and impartiality. As a typical example, Standard VI of the ABA Model Standards of Conduct for Mediators requires that “[a] mediator shall conduct a mediation … in a manner that promotes … safety … party participation, procedural fairness … and mutual respect among all participants.”

Mediator best practices safeguard the parties’ rights.

Adherence to these principles begins before the parties’ joint mediation session. The mediator should inquire (and the parties should volunteer) in pre-session conferences about the history of the parties and counsel. Pre-session conversations can provide the mediator insight concerning counsel’s style or negotiation strategy; this may be useful in planning how to forestall or address any abusive or problematic conduct that surfaces later.

The mediator should establish, and the parties should expect, ground rules for the mediation. Even in situations where the parties do not want to have extensive opening statements, the mediator should conduct a brief opening session, in part to address the importance of everyone participating respectfully and professionally.

As the mediation proceeds, the mediator should remain alert to any potentially offending conduct and its impact on the proceedings. Responses to the conduct should be tailored to the nature of such conduct.

Counsel also need to remember their obligation to protect the process and their clients. Thus, they should promptly bring offending conduct to the attention of the mediator.

Usually, the right of party autonomy allows participants to adopt different styles and strategies, free from mediator control. However, if the mediator observes or learns of offensive or disruptive conduct, the mediator should step in. Pointing out that abusive language is a poor substitute for a strong case and unethical may be effective.

Addressing such conduct in separate caucuses can be the most appropriate approach. If the objectionable conduct is coming from a party, the mediator may meet privately with counsel to handle the issue. If this does not solve the problem, the mediator may consider discussing it in joint session. If necessary, the mediator always has the authority to terminate any mediation. Similarly, consistent with the parties’ right to end a mediation that is not proceeding in a productive way, any participant concerned that another’s abusive behavior has become intolerable may request that the mediator terminate the session.

Allowing offending conduct by a mediation participant does no one a favor. It damages the process, frustrates resolution of the case and—in the case of sufficiently coercive conduct—may serve as grounds to set aside a settlement.[4] Thus, it is important for counsel to prepare for each mediation, forearmed with knowledge of all applicable public and private rules of ethical conduct to which the mediator, counsel and parties must adhere, and to assist the mediator in assuring that those rules are followed by all involved.

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