Pitt and Jolie’s divorce has taken a long time, filed for in 2016, although divorced in 2019 their agreement regarding child custody and financial assets is still ongoing. Jolie and Pitt decided to take a private judge (Judge John W. Ouderkirk) for their proceedings so that most of the information will remain confidential. Recently Jolie has asked for the judge to be removed as there has been a working relationship with Pitts lawyer who has brought other cases to the private judge. There are no accusations of actual bias by the judge, but the notion of perceived bias is in play. Jolie’s team are contending that the judge should have disclosed his previous dealings with Pitt’s lawyer. In California, there does not need to be actual bias but simply that a person may reasonably entertain doubts of bias based on the information.
As mediators, we need to take notice of this. Referrals and working relationships should be disclosed. The case emphasises that a private judge must follow the same rules of disclosure and conflict of interest that judges in the regular court system need to adhere to. Even though we as mediators do not make judgements, we must be careful to avoid even the appearance of any bias. Mediators work closely with lawyers in many situations and it is unlikely that over the course of a career relationships are not formed and that lawyers do not refer to certain preferred mediators. It is a hard ethical line as lawyers will try to refer cases to mediators who they think will be beneficial to them. The mediator has to work hard to make sure his ethical compass is intact and not swayed by business and market factors. Having relationships with lawyers is acceptable (indeed in most cases unavoidable) as long as the mediator can disclose to the parties that they have had cases referred to them previously. What the Jolie Pitt divorce has taught us is that disclosure at the beginning of the process is as always paramount.