Mediators are supposed to avoid conflicts of interest. According to Standard III of the Model Standards of Conduct for Mediators (2005):
…[a] conflict of interest can arise from involvement by a mediator with the subject matter of the dispute or from any relationship between the mediator with the subject matter of the dispute or from any relationship between a mediator and any mediator participant, whether past or present, personal or professional, that reasonably raises a question of a mediator’s impartiality.
Thus, when a mediator is first contacted about taking a case, she needs to inquire about the names of all concerned in the dispute (both parties and attorneys) and the subject matter. If the initial conflicts check reveals no conflicts, she may take the case. However, if she later discovers that a conflict does exist, she must advise the parties (and counsel) and let them decide whether they want her to still go forward and mediate the case. However, if the conflict is such that it “… might reasonably be viewed as undermining the integrity of the mediation,” the mediator must withdraw or decline to proceed even over the expressed willingness of the parties (and counsel) that she proceeds. (Id.)
It is probably rare that a conflict is so severe that a mediator should not proceed despite the expressed desires of the parties that she do so. Yet, in Mediation Ethics: A Practitioner’s Guide edited by Omer Shapira (American Bar Association, 2021), the authors– Ellen Waldman and Donna Erez-Navot—of the Chapter; “Accepting a Case or Refusing to Mediate: Ethical Considerations” cite a disturbing example.
The example involved the mass shooting in Las Vegas perpetrated by a gunman staying at MGM’s Mandalay Bay who fired into the crowd attending a music festival in an open field below. Nearly 60 persons died, and hundreds were injured. Thus, lawsuits for wrongful death and personal injury were filed. “Attorneys for the victims claimed that MGM was negligent in allowing the gunman to stockpile high-powered rifles and thousands of rounds of ammunition in his hotel room.” (Id. at 92.) After months of litigation, the parties agreed to attend mediation. Two former state court judges co-mediated, and the parties ultimately settled the case.
However, about eight months later, some of the plaintiffs began” … to express concern that the settlement was not fair.” (Id.) They discovered that one of the mediators was the daughter of the vice president of security at MGM who held this position both at the time of the mass shooting and up until shortly before the mediation. (Id.)
The coordinating counsel for the plaintiffs stated that they were aware of this relationship and were comfortable with it. They also claimed that they informed the plaintiffs in writing about it, and no one objected. A newspaper inquiry revealed that some of the written disclosures were vague about this conflict of interest. While other versions of the written disclosures were a bit more clear, the plaintiffs either did not recall receiving the disclosures or failed to understand the significance. That is, how a father-daughter relationship between the mediator and an executive in charge of security at MGM could impact the settlement. (Id. at 93.)
The authors of this chapter conclude that this presents a “nonwaivable conflict.” “Disclosure and consent do not cure a conflict that threatens to undermine “the integrity of the mediation process…. Here, the mediator should have bowed out—thereby avoiding the taint, ill will, and concern that ended up contaminating the process.” (Id. at 93.)
So, while in most cases, a conflict does not present an issue, once in a while it will and be so severe, that it cannot be waived.
… Just something to think about.
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