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David Fitzsimons

It's Settled, Then.

Mediation Worxx – Model Standards of Conduct for Mediators

November 2, 2012 by David Leave a Comment

As the Summer months come to a [shockingly] rapid conclusion, I find we are still not so far along in our survey of the Model Standards of Conduct for Mediators  [September 2005] and the practice and preparation guides that are conveyed in reviewing and contemplating the standards. This month we will address some of the views that arise from the Standards on Competence, with my comments italicized in the text…as we move into fall, these Standards will continue to inform or frame the discussion, but I’ll try to [appear] more thoughtful in substance. As always, your all too rare questions and comments are welcome and requested.

STANDARD IV. COMPETENCE

A. A mediator shall mediate only when the mediator has the necessary competence to satisfy the reasonable expectations of the parties.

1. Any person may be selected as a mediator provided that the parties are satisfied with the mediator’s competence and qualifications. Training, experience in mediation, skills, cultural understandings and other qualities are often necessary for mediator competence. A person who offers to serve as a mediator creates the expectation that the person is competent to mediate effectively.

When it comes time to select a Mediator, there is a pretty broad spectrum of qualities that one may wish to consider. For me, I want to know what actual specific training the prospective mediator has taken. But then, I’ve taken a LOT of training myself, and I view the type of and perspective from training to be a vital factor in mediator selection. Then again, all the training in the world is not going to help if, for whatever reason I lack the “cultural understandings and other qualities” necessary for the particular dispute.

Lawyers in particular place great significance in their perception of the substantive expertise of a particular mediator candidate during the selection process. Many “purists” practicing mediation decry this emphasis, claiming that opinions on substance often get in the way of exploring potentially vital understanding across the table that might lead to more comprehensive disputes resolution. Contrast if you will…”The case got settled, and the parties vowed never to speak with each other again”…with…”The case settled, and the parties are still doing business.”

Personally I’ve been a proponent of both extremes from time to time, but at this moment I have to say “it depends”. Not every dispute coming to mediation is a “Group Hug Just Waiting to Happen”. But then, not every seemingly cut and dry case about money, truly is “just about the money”.

My point is, that you do not always know going in, as the mediator OR the lawyer for a party, what truly is driving the respective clients’ interests at that moment in time. What started a conflict, over time, might well be different from what drives one or more parties towards resolution [the crippling costs of litigation is perhaps too obvious, but often a factor]. I’ll continue this frame, and hopefully draw in some of the pre-mediation processes discussed in prior columns.

Filed Under: Ethics, Mediation, Mediation 101 Tagged With: mediators, model standards of conduct

A Check-List for the Pre-Mediation Process

October 10, 2012 by David Leave a Comment

Potential, but not necessarily all, required elements of the pre-mediation process.

  • Live conference
  • Conference call with or without parties
  • Circulation of agreement to mediate
  • Request for pre-mediation statements

Statements are vital, preferably confidential, i.e. not shared between the parties, and if structure properly in their basics and customized for the nature of the dispute that the mediator learns about in the pre-mediation conference, they will provide time saving insights into the process the mediator is going to guide the parties through.

 

Filed Under: Ethics

Mediation Worxx – Model Standards and Conflicts of Interest in Mediation

October 2, 2012 by David Leave a Comment

We continue my self-styled cruise through the Summer months by addressing a widely recognized standard, the Model Standards of Conduct for Mediators  [September 2005] and the practice and preparation guides that are conveyed in reviewing and contemplating the standards.

STANDARD III. CONFLICTS OF INTEREST [Erroneously billed last month as “Confidentiality” I blame ‘text completion’]

A. A mediator shall avoid a conflict of interest or the appearance of a conflict of interest during and after a mediation. A conflict of interest can arise from involvement by a mediator with the subject matter of the dispute or from any relationship between a mediator and any mediation participant, whether past or present, personal or professional, that reasonably raises a question of a mediator’s impartiality.

B. A mediator shall make a reasonable inquiry to determine whether there are any facts that a reasonable individual would consider likely to create a potential or actual conflict of interest for a mediator. A mediator’s actions necessary to accomplish a reasonable inquiry into potential conflicts of interest may vary based on practice context.

C. A mediator shall disclose, as soon as practicable, all actual and potential conflicts of interest that are reasonably known to the mediator and could reasonably be seen as raising a question about the mediator’s impartiality. After disclosure, if all parties agree, the mediator may proceed with the mediation.

D. If a mediator learns any fact after accepting a mediation that raises a question with respect to that mediator’s service creating a potential or actual conflict of interest, the mediator shall disclose it as quickly as practicable. After disclosure, if all parties agree, the mediator may proceed with the mediation.

E. If a mediator’s conflict of interest might reasonably be viewed as undermining the integrity of the mediation, a mediator shall withdraw from or decline to proceed with the mediation regardless of the expressed desire or agreement of the parties to the contrary.

F. Subsequent to a mediation, a mediator shall not establish another relationship with any of the participants in any matter that would raise questions about the integrity of the mediation. When a mediator develops personal or professional relationships with parties, other individuals or organizations following a mediation in which they were involved, the mediator should consider factors such as time elapsed following the mediation, the nature of the relationships established, and services offered when determining whether the relationships might create a perceived or actual conflict of interest.

Here we have clearly subjective standards as I have highlighted above, and you might well wonder why such seemingly loose criteria apply. I suggest that this comes back to a key element of mediation…”the use of a neutral to help parties by facilitating discussion leading to negotiated settlement”. I submit that such an amenable conflicts standard relies upon the supposition that the mediator is NOT there to “decide” the case, but to facilitate negotiation. One of the symptoms of the current limited use and understanding of mediation in our geographic area, in my humble opinion, is the mistaken assumption that mediators can only, and are expected to voice opinions on the merits of each party’s side. More on this next soon.

Filed Under: Ethics, Mediation, Mediation 101 Tagged With: conflicts of interest, ethics, mediation

How does an attorney avoid abuse of his services?

July 1, 2012 by David Leave a Comment

Q: I am an attorney and sometimes serve as a mediator for disputes which are not yet in litigation, or are pro se representations referred by Magistrate Justices. Often it seems as if the parties are unfairly using my legal services to map out an agreement. How do I avoid this?

A: That is a great question, and it brings up a number of issues. First let me say that the role of mediator does carry potential pitfalls for the lawyer/neutral. Often in matters that are in litigation, lawyers representing parties will look for an attorney/mediator with subject matter expertise. In the right circumstances, this is vital, in others, it can be optional, or even an impediment. But that is another article. Non-represented parties knowing you are a lawyer can be problematic because you do NOT represent either…and except in very rare and exceptional circumstances you cannot represent both. Again, that is another article.

The Pennsylvania Rules of Professional Conduct provide a useful guideline for addressing this issue, and I’m sure you can find bases for explaining the importance of observing the protections of the R.P.C. and how the points I have highlighted from the comment below can aid in your decision, and explanation to unrepresented parties.

Rule 2.4 Lawyer Serving as Third-Party Neutral

(b) A lawyer serving as a third-party neutral shall inform unrepresented parties that the lawyer is not representing them. When the lawyer knows or reasonably should know that a party does not understand the lawyer’s role in the matter, the lawyer shall explain the difference between the lawyer’s role as a third-party neutral and a lawyer’s role as one who represents a client.

Comment:

[3] Unlike nonlawyers who serve as third-party neutrals, lawyers serving in this role may experience unique problems as a result of differences between the role of a third-party neutral and a lawyer’s service as a client representative. The potential for confusion is significant when the parties are unrepresented in the process. Thus, paragraph (b) requires a lawyer-neutral to inform unrepresented parties that the lawyer is not representing them. For some parties, particularly parties who frequently use dispute resolution processes, this information will be sufficient. For others, particularly those who are using the process for the first time, more information will be required. Where appropriate, the lawyer should inform unrepresented parties of the important differences between the lawyer’s role as third-party neutral and a lawyer’s role as a client representative, including the inapplicability of the attorney-client evidentiary privilege. The extent of disclosure required under this paragraph will depend on the particular parties involved and the subject matter of the proceeding, as well as the particular features of the dispute-resolution process selected.

Filed Under: Ethics, Mediation Tagged With: ADR, mediation

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David Fitzsimons - Principal
ADRFitz LLC
Alternative Dispute Resolution
Mediation. Arbitration. Peacemaking.
"Its Settled, Then"
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