March 29, 1996, Geneva, Switzerland
Roundtable: Ethical Obligations and Responsabilities of the Mediator and Mediator Immunity
Professor Stephen Goldberg, Northwestern University School of Law
Professor Margaret Shaw, New York University School of law
Professor Karl Mackie, Director, Centre for Dispute Resolution
A. Ethics rules applicable to mediators have been promulgated by a variety of institutions and groups:
1. mediators professions of origin (law, mental health and psychology, economics, business management, etc.); (1)
2. professional organizations of mediators and other providers of alternative dispute resolution ("ADR") services;
3. individual courts and programs that offer ADR services; and
4. in at least one instance, a court has found that ABA Code of Judicial Conduct applicable to the conduct of third-party neutrals serving the courts. (2)
B. The preface to the Model Standards of Conduct proposed by the American Bar Association ("ABA"), the American Arbitration Association ("AAA") and the Society of Professionals in Dispute Resolution ("SPIDR") states succinctly the three major functions such standards are intended to perform:
"... first, to serve as a guide for the conduct of mediators; second, to inform the mediating parties; and third, to promote public confidence in mediation as a process for resolving disputes."
C. Some Codes of Ethics drafted explicitly to govern the conduct of third-party neutrals apply to all types of neutrals (arbitrators, mediators and evaluators) (3); others are written to cover only mediators. (4) Generally, ethical obligations of mediators that differ from ethical obligations of arbitrators have to do with such conduct as:
1. ensuring that each party fully understands and voluntarily consents to any agreement reached in the process; and
2. not coercing the parties in any manner to continue the process or to reach agreement.
Arbitrators, of course, are also generally constrained from marketing their services and from meeting with the parties ex parte.
D. Most Codes of Ethics for mediators address the following concerns:
1. Impartiality (freedom from favoritism or bias either by appearance, word or by action, and a commitment to serve all parties as opposed to a single party)
2. Informed Consent (ensuring that each party fully understands the nature and character of the process, and fully understands and voluntarily consents to any agreement reached in the process)
3. Conflict of Interest (disclosure of all actual or potential conflicts of interest, including circumstances that could give rise to an appearance of conflict)
4. Disclosure of fees (including fees and anticipated costs)
5. Confidentiality (treating information revealed in a mediation as confidential, and informing the parties of any limitations on confidentiality)
6. Role of Mediators in Settlement (ensuring that parties consider fully the terms of the settlement, and being sensitive to inappropriate pressures to settle)
7. Suspending or Terminating the Mediation Process (in circumstances where a party is unwilling or unable to participate meaningfully in the process or that agreement in unlikely)
E. As different institutions and groups develop ethical codes and standards of practice for mediators and other neutrals, notable differences of opinion about important matters are emerging.
1. Subsequent representation by a lawyer/mediator of a party in a prior mediation. All codes distinguish between subsequent representation on matters related and unrelated to the subject of mediation. Some codes deal with the issue of subsequent representation through disclosure, some require permission of both parties to the prior mediation, and some bar the mediator from subsequent representation for a fixed period of time.
2. Confidentiality. Most codes provide that the mediator shall honor the confidentiality of the process in accordance with applicable laws and court rules. However, applicable laws and court rules differ from jurisdiction to jurisdiction as to the kind and degree of confidentiality protection provided, who may assert or waive confidentiality, and what kinds of exceptions to confidentiality are provided.
3. Role of Mediators in Settlement. By definition, mediation is a process in which decisions are made by the parties, not by mediators. However, there is disagreement among practitioners as to the extent to which a mediator is responsible for ensuring a fair outcome in mediation, and as to whether mediators should consider the interests of nonparticipating parties who will be affected by the outcome. There is also disagreement as to whether lawyer-mediators should be prohibited from providing legal advice or evaluations.
4. Fees charged by mediators. The practice of enhanced payment of mediators for settlement, or "contingency fee" mediation, is the subject of growing controversy.
F. There are as yet few formal disciplinary bodies to enforce ethical codes. One state in the United States (Florida) has developed procedures to handle violations of its standards for mediators. These procedures call for a complaint committee to be comprised of a judge or attorney and two court-certified mediators. (5) At least one other state (Utah) is considering similar procedures. This leaves possible malpractice issues to the courts. To date in the United States there have been no reported cases in which a mediator has been successfully sued for damages regarding mediation services. This is due in part to the consensual nature of the process and in part to the difficulty of proving damages and causation in a case involving mediation. (6)
G. Some states have provided absolute or limited liability for mediators serving the courts or other public agencies. (7) Statutes that provide limited immunity commonly protect mediators from civil liability for negligent acts or omissions, and except acts or omissions that could be characterized as exhibiting a reckless disregard of a substantial risk of significant injury, or intentional misconduct.
H. It has been argued that mediators should be subject to quasi-judicial immunity, as are arbitrators. While courts have embraced the notion that arbitrators perform an essentially judicial function and so should enjoy protections similar to judges, mediators differ in that they have no decision-making authority.
I. At least one court has addressed the issue of mediator immunity in the context of a formal court-sponsored alternative dispute resolution program. (8) The court found the court-appointed "neutral case evaluator" with no decision-making authority shielded by absolute immunity, reasoning that he performed tasks involving substantial discretion, that the process of settlement is a "natural, almost inevitable concomitant of adjudication" that arouses disgruntled litigants, and that there were avenues of relief available other than suit against the neutral that provided adequate safeguards against misconduct by a mediator.
J. Private mediators are generally protected from liability for negligent acts or omissions through insurance. In addition, agreements to mediate often contain a provision that "the mediator shall not be liable to any party for any act or omission in connection with any mediation conducted under this agreement," although there is some question whether such a provision is, or should be, enforceable.
Notes
1. Whether mediation is the practice of law, such that the American Bar Associations Model Rules of Professional Conduct would apply to lawyers acting as mediators, remains subject to debate. The weight of opinion is that the Model Rules are a porr guide for lawyers serving either as neutrals or in representational roles in ADR, since they were not drafted with the ADR functions of lawyers in mind and do not take into account the special goals and values of ADR processes, particularly mediation.
2. See In Re Asbestos Litigation, E.D.N.Y. and S.D.N.Y., 737 F. Supp. 735 (1990), applying the ABA Code of Judicial Conduct to special masters appointed by the court.
3. See, e.g., Ethical Standards of Professional Responsibility promulgated by the Society of Professionals in Dispute Resolution, and Texas Ethical Guidelines and Standards of Practice for Impartial Third Parties.
4. See, e.g., Model Standards of Conduct for Mediators proposed by the American Bar Association, American Arbitration Association, and Society for Professionals in Dispute Resolution, and Florida Standards of Professional Conduct for Certified and Court-Appointed Mediators.
5. Florida Standards of Professional Conduct for Certified and Court Appointed Mediators, Rules of Discipline (1991). If the complaint committee finds probable cause to believe that alleged misconduct by a mediator would constitute a violation of the standards, the committee may "meet with the compl;ainant and the mediator in an effort to resolve the matter." Possible sanctions range from oral admonishment to de-certification.
6. See. e.g., Lange v. Marshall, 622 S.W. 2d 237 (Mo. Ct. App. 1981).
7. See, e.g., Cal. Civ. Proc. Code sec. 1297.432; Haw. Rev. Stat. secs. 672-679; Ill. Rev. Stat. ch. 111, para. 4804(B); Iowa Code secs. 13.14, 654A.15, 679.13; Me. Rev. State. Ann. tit. 4, sec 18(2-A); Miss. Code Ann. sec. 69-2-49; Mont. Code Ann. sec. 80-13-213; N.J. Rev. Stat. secs. 2A:23A-9(c), 34:13A-16(h); N.D. Cent. Code sec. 6-09.10-04.1; Va. Code Ann. sec. 8.01-581.23; Wash. Rev. Code sec. 7.75.100; Wis. Stat. sec. 93.50(2)(c).
8. Wagshal v. Foster, 28 F. 3d 1249 (D.C. Cir. 1994, cert. den., 115 S. Ct. 1314 (1995).