PREMi ADR SPOTLIGHT: Mediator ethics and ethical dilemmas


By Antoinette Raheem

While professional ethics for attorneys are required subjects in law schools, ethics for mediators receive much less attention. In most Michigan law schools, the Michigan Mediator Standards of Conduct(1) (hereinafter referred to as “the Standards”) are addressed in a cursory fashion or not addressed at all--and certainly are not required reading. Although the Standards are addressed in most mediator training courses, the amount of time devoted to the Standards in such courses is necessarily minimal—at most an hour or so out of the entire 40-hour training. Moreover, some mediators bypassed formal mediator training and have had no exposure to the Standards.

In hopes of enlightening the legal community, this article provides an overview of the Standards. First, it introduces the Standards by clarifying the types of mediations to which they apply. This is followed by an explanation of the consequences for a violation of a Standard. Next is a thumbnail sketch of each Standard (not necessarily each and every Standard), sometimes followed by an ethical dilemma which could arise under a given Standard, to illustrate how the Standards apply in everyday mediation practice.

Applicability of Mediator Standards

The Standards do not apply to all mediations in Michigan. Rather, per the introductory paragraph of the Standards, they apply only to cases “managed under” the Michigan Court rules. Once a case is filed in a Michigan state court, court-ordered mediation becomes subject to the Michigan Court Rules and the Standards. However, cases filed in a Michigan federal court where federal rules are controlling are not managed under Michigan Court rules so the Standards do not apply.(2) Also, if a case has not yet been filed in any court and the parties agree to mediate before filing, the Standards would not, without more(3), apply to that pre-filing mediation.

Consequences for Violation of a Standard

So, what happens if a mediator violates a Standard? For the most serious violations, a mediator can be removed from a court-approved mediator roster if they violate an “obligation or prohibition” in the Standards. That is, the Standard violated must either require certain action (not merely suggest it) or forbid certain action in order for the mediator to be removed from the court’s roster. The kinds of Standards which can result in such removal include those that provide “A mediator shall...”, or “A mediator shall not...” language. Removal from the court mediator roster is not provided for violation of Standards which merely indicate “A mediator should...”, or “A mediator should not...” take certain action. In fact, the Standards do not provide for any consequences upon violation of a “should” standard, indicating that such standards are meant to guide, rather than dictate, mediator behavior.

Nor are the Standards to be used as a basis for legal action against a mediator who violates one or more of them. The Standards expressly provide that they do not give rise to a cause of action for damages allegedly caused by a violation. Likewise, the Standards provide they cannot be used as the basis of a lawsuit for the equitable relief of “enforcement of a rule”. (See introductory paragraph to the Standards.)

Overview of Mediator Standards

There are ten topics addressed in the Standards: I) Self-Determination; II) Impartiality; III) Conflicts of Interest; IV) Mediator Competence; V) Confidentiality; VI) Safety of Mediation; VII) Quality of the Process; VIII) Advertising and Solicitation; IX) Fees and Other Charges; and X) Advancement of Mediation Practice. Below is a summary of each Standard:

I)Self-Determination. This Standard requires (i.e., uses “shall”) that the mediator “conduct mediation based on the principle of party self-determination.” In short, the party, not the mediator, must be allowed to decide the way the mediation is to go generally, how it is to be resolved, and whether it is to be resolved. Standard I also provides that self-determination includes process design, and terminating the process.

Sample Dilemma. In her mediations, mediator Terry has a strong preference between having all the parties in one room throughout the mediation, as opposed to having them in separate rooms, or caucus, throughout. Terry expresses her preference to the parties and their attorneys at the start of the mediation and both sides respond that they strongly prefer caucus throughout. What should Terry do?

While the mediator may express her preference and encourage the parties to use the mediator’s preferred process, Standard I puts the final decision as to what process to follow in the hands of the parties. If Terry cannot convince the parties to use joint sessions, she must use the caucus process desired by the parties or decline to serve as their mediator.

II) Impartiality. This is another mandatory standard which requires the mediator to not only conduct the mediation in an impartial manner, but also avoid the appearance of partiality. A mediator may actually be partial, i.e., feel that one party should prevail over the other, but the requirement is that the mediator conduct the mediation in an impartial manner. In other words, this rule requires that if mediator has a bias, they should not let it affect how they mediate. If they can’t do that, they must withdraw, even if the parties say the mediator doesn’t have to withdraw.

Sample Dilemma. Mediator Mel begins mediating a divorce confident he is impartial and can conduct the mediation without any bias toward or against either party. However, over the course of the mediation, Mel believes the husband is abusing the wife. While the wife’s attorney is supporting the wife’s ability to make decisions freely in the mediation, Mel has always disliked abusive spouses, as his father was one. Mel now feels less than friendly toward the husband in this mediation. What should Mel do?
Per Standard II, Mel must decide whether, despite his bias, he can conduct the mediation in an impartial manner. If he cannot, he “shall” withdraw.

III) Conflicts of Interest. This Standard states the mediator “should” avoid conflicts of interests in mediation, so there is no mandate to do so. However, the mediator is required to make inquiries that allow them to discover a conflict of interest. “A conflict of interest is a dealing or relationship that could reasonably be viewed as creating an impression of possible bias or as raising a question about the impartiality or self-interest on the part of the mediator.” A mediator shall also disclose a conflict if they know of one. However, if the participants say the mediator can continue after the being made aware of the conflict, the mediator can continue to serve as a mediator in the case. (But is it wise to do so?) This rule also prohibits the mediator from developing another relationship with any mediation participant “without the consent of all parties.” In determining whether to have an outside relationship with a participant, even if the parties approve, the mediator should look at factors such as the nature of the outside relationship, the proximity in time to the mediation, etc.

Sample Dilemma. Mediator Jill frequently mediates employment law disputes for parties represented by the same defense attorney. May she mediate a new dispute with the same defense attorney representing a different client? If she discloses the prior relationship and the parties consent, this Standard permits her to do so.

IV. Mediator Competence. A mediator “should” be qualified to competently conduct the mediation. If they find they are not, they “shall” advise the parties as soon as possible. Standard IV. gives options for the mediator to consider if they find they are not qualified. These include getting assistance, withdrawing, attending educational programs and/or engaging in peer consultation, etc.

Sample Dilemma. Howard began mediating a probate dispute between two cousins where neither party brought their attorney to the mediation. While Howard knew before starting the mediation that the parties were difficult, during the mediation he discovered one party had a post-traumatic stress disorder and the other was bipolar. Howard had never dealt with either disorder in a mediation before. A few hours into the mediation, Howard felt he had lost control and that the mediation was in chaos. What should Howard do?

Howard must first determine if he can competently conduct the mediation. In some situations, a caucus or brief break could put the mediation back on track. If not, Howard can seek help, withdraw or otherwise address the situation. For example, he may want to bring in a co-mediator who is experienced with PTSD and bi-polar syndrome.

V) Confidentiality. The mediator “shall” maintain the confidentiality of information they obtained in the mediation process. As soon as possible in the mediation process, the mediator “should” tell the participant of the mediator’s obligation as to confidentiality and put it in writing. The rule does not provide for any sanction for revelation of confidential mediation information but does say the mediator should consider the safety of persons at risk of physical harm if there is a release of information.

VI) Safety of Mediation. A mediator shall make reasonable efforts throughout the mediation to screen for the presence of impediments to safety or to a voluntary resolution of the mediation.

VII) Quality of the Process. The mediator must protect the quality of the mediation process as to a multitude of factors such as the mediator’s availability for this mediation, who participates in it, how well the parties are able to participate, procedural fairness, appropriateness of the mediation, the role of the mediator, etc. The Standard also mandates the mediator shall not act in the role of any other professional while mediating.

Sample Dilemma. Abbey is an attorney serving as a mediator in a divorce case. Neither party can afford an attorney. The parties agree the husband will not pay child support even though the wife has their three children 80% of the time and earns half of what the husband makes. Abbey doubts the court would approve such an agreement but knows she cannot give legal advice as a mediator. What should Abbey do?

Abbey can ask both parties if they have considered whether the court would approve this provision and suggest they ask an attorney before they finalize the agreement. If they decline, Abbey can either put her advice in writing to the parties or withdraw as the mediator.

VIII) Advertising and Solicitation. This Standard requires the mediator to be truthful in advertising, not claim to meet qualifications for an organization unless qualified through a recognized procedure of that organization, and not use the names of persons served in promotional material without their permission. Mediators should not advertise they are “certified” by Michigan courts because Michigan does not certify mediators.

IX) Fees and Other Charges. This Standard requires that early in the mediation process, the mediator provide the parties or their representatives with the mediator’s fees in writing; the fees be consistent with the mediator’s qualifications; the mediator’s fees not be contingent; and the fees not impact the mediator’s ability to impartially conduct the mediation.

X) Advancement of Mediation Practice. This Standard encourages mediators to advance mediation by doing the following: promote diversity in the mediation field; make mediation more accessible; participate in relevant research, promote public education about mediation; engage in mediation training, mentoring, networking and peer consultation.

Conclusion

Mediator ethics are important. All attorneys, mediators and judges should be familiar with the Standards, keep them in the forefront of our minds and apply them in our everyday practice. By doing so, we all become invaluable participants in the advancement of mediation in the State of Michigan.
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(1)www.courts.michigan.gov/4aa077/siteassets/court-administration/standardsguidelines/ dispute-resolution/med-soc.pdf

(2)Note that the ABA has a set of Mediator Standards of Conduct, very similar to the Michigan Standards discussed herein, which could apply.

(3) While the Standards may not apply in a pre-filing mediation which is silent on the Standards, the Standards could apply in such cases should the participants insert a provision in the Agreement to Mediate stating the Mediation will be conducted subject to the Standards.
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Antoinette Raheem has more than 30 years of experience in the practice of law, more than a decade of which she has served exclusively as a mediator, arbitrator or other alternative dispute resolution (ADR) neutral.  She clerked for U.S. District Court Judge Julian Cook, and after which she went on to become a partner at Honigman, Miller, Schwartz, & Cohn. Raheem opened her own practice in 1993, focusing on business, civil rights, domestic and defamation matters. In 2005, her practice converted to an exclusively ADR practice, including mediation, arbitration, fact finding and case evaluation. In addition, Raheem has taught ADR as an adjunct professor at Wayne State Law School, Michigan State College of Law and Western Michigan University Cooley Law School. She has also taught conflict resolution theories at the Oakland University graduate school of Public Administration. Raheem has conducted hundreds of mediations and arbitrations and has completed numerous advanced and basic ADR training programs.  She is a State Court-approved trainer for advanced and basic mediation training and on the court approved mediator list in several Michigan counties.