In preparing to teach a class on mediation ethics, I read Mediation Ethics edited by Ellen Waldman (Jossey-Bass, San Francisco, 2011). In it, she makes a point I had never thought about: The Model Standards of Conduct for Mediators are inconsistent. (Id. at 13-14.) (“Model Standards”) While the Model Standards are not law, they are aspirational and are taught as guiding principles to all aspiring mediators. And throughout our training, the Model Standards are continuously referenced.
But, they are not consistent. As one example, compare Standard 1 on Self-Determination with Standard VI on Quality of Process and Standard II on Impartiality.
Standard 1 is entitled Self-Determination and provides in paragraph A that
A mediator shall conduct a mediation based on the principle of party-self-determination. Self-determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome.
But, subparagraphs (1) and (2) hint at the inconsistency by stating:
1. Although party self-determination for process design is a fundamental principle of mediation practice, a mediator may need to balance such party self-determination with a mediator’s duty to conduct a quality process in accordance with these standards.
2. A mediator cannot personally ensure that each party has made free and informed choices to reach decisions, but, where appropriate, a mediator should make the parties aware of the importance of consulting other professionals to help them make informed choices.
In contrast is Standard VI- Quality of Process. Paragraph A provides:
A mediator shall conduct a mediation in accordance with these Standards and in a manner that promotes diligence, timeliness, safety, presence of the appropriate participants, party participation, procedural fairness, party competency and mutual respect among all participants.
Subparagraph A(4) provides that “a mediator shall promote honesty and candor between and among the participants, and a mediator shall not knowingly misrepresent any material fact or circumstance in the course of a mediation.”
The next subparagraph -A(5)- notes that “a mediator may provide information that the mediator is qualified by training or experience to provide, only if the mediator can do so consistent with these Standards.”
Next, Standard II discusses Impartiality. A mediator is to remain impartial which is defined as “…freedom from favoritism, bias or prejudice. “ If the mediator is unable to remain impartial, the Standard provides that the mediator is to withdraw.
Applying these to a hypothetical, let us suppose that two parties and their respective attorneys are attending a mediation. While the defense attorney Betsey is very astute and learned in the subject matter of the mediation, plaintiff’s counsel Carol is just out of law school without a clue of how valuable is her client’s case. She is unprepared for mediation in more ways than one.
The mediator under Model Standard 1 must allow the parties Self Determination both as to process and outcome. The choices to be made by the parties are to be “free and informed choices as to process and outcome”. But how can the plaintiff make an “informed” choice when her counsel is not “learned in the law”? So- under Standard 1- paragraph A (1), the mediator will need to balance this self determination with the duty to conduct a quality process which under Standard VI-(A) requires the mediator to conduct the mediation “…in a manner that promotes…party competency…” and under A(4) “promote[s] honesty and candor between and among all participants “. And the mediator can do this by “…providing information that the mediator is qualified by training or experience to provide, only if the mediator can do so consistent with these rules.”(VI(A)(5))
So, does the mediator have a private conversation with defense counsel to implore defense counsel to be “honest and candid” about the value of the matter? Or would such a conversation interfere with the defendant’s right of self-determination ( as well as violate the duty to be impartial and neutral)?
Does the mediator have a private conversation with plaintiff’s counsel to suggest by Socratic questioning or otherwise that she is under valuing the case? If the mediator provides information that by training and experience she is qualified to give, she may be insuring quality of process, but is she undermining “self-determination”? And… is she practicing law rather than being impartial and neutral? Must the mediator withdraw?
Or does she honor the principle of Self-Determination and say and do nothing with the prospect of the matter settling for way less than it is worth. Has this then violated the principle of Quality of Process in that the mediator has allowed defense counsel to be less than honest and candid about the value of the matter and has allowed plaintiff and plaintiff’s counsel in the name of self -determination to settle for way less than the true value of the matter? The mediator may have remained neutral and impartial, but has it been to the detriment of the quality of the process?
The above is only one of many examples of the oxymoronic nature of the Model Standards. So, mediators beware. Do not get twisted into knots in attempting to achieve the aspirational nature of the Model Standards!
… Just something to think about.
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