Sunday, November 8, 2009

Mediator's Ethics: Does it Include a Just Outcome for the Disputants?

Yesterday I attended the Southern California Mediation Association's 21st Annual Conference. The piece by Professor/Dean Peter Robinson of The Straus Institute of Dispute Resolution at Pepperdine University really caused me to examine my practice. Although the talk was billed as "Ethics for Mediators", Professor Robinson provoked us to question whether mediator's have a heightened duty to make sure that whatever agreements we "broker" have legitimacy, integrity and meet legal standards. The legal standards would, of course, include only those agreements which were not entered under duress or coercion, were based upon informed consent and entered into by a person of sound mind and capacity. Robinson suggests that this is all the more important because if a party enters into an agreement in the context of mediation, he or she can never establish that the agreement was unfair and therefore set it aside later. Hmmm...This puts a burden upon the lawyer mediator that I'm not sure I'm willing to accept. I was pretty satisfied being staunchly "impartial" and allowing the parties to exercise their self determination. And yet....It's noteworthy to point out that there are Model Standards for Mediators, which are a little different from those adopted here in California, that require both self-determination and fairness. Occasionally, these contradict one another. I have frequently presided over mediations in which I believed that one side was getting an unfair "deal"--but did not intervene to re-balance the terms of a deal which both sides agreed to enter into. While I routinely "test" whether there is money left on the table, for example, I typically refrain from interfering in a negotiation which seems to me to be imbalanced. I assume that each party, always acting through their attorneys in my case, have their own reasons for doing what they are about to do--even if it doesn't make sense to me. There is something driving them to reach the deal that they strike--and I'm generally satisfied that I need not safeguard the "outcome", just the fairness of the process. Robinson's lecture suggests otherwise. I'm still examining...

1 comment:

Joe Markowitz said...

I didn't hear Robinson's talk, but I would also be leery of accepting a duty to make sure that agreements are "fair" by some objective measure, in the sense of whether someone paid a fair price for a car or some other object with an ascertainable value. But maybe mediators, or at least their attorneys, do have a duty to take some steps to make sure an agreement is "fair" in the sense that the parties are both comfortable with the agreement, that the agreement is workable, that the parties understand the agreement, and that the parties are not going to regret settling their case later.

The only bad experience I ever had in a mediation was when I had a client that made a deal with the other side outside my presence, and then decided the next day that they did not want to make that deal at all. We sometimes need to take a little extra time to make sure that all parties understand what they are agreeing to and that they are all comfortable it.