Cyberweek 2012

Ethical Dilemma for Cyberweek 2012

By Kristen Blankley

The Ethical Dilemma for Cyberweek 2012 concerns a partially online mediation described below.  The mediator is at a quandary and would like to know how to proceed in an ethical manner.  

The Hypothetical

You are mediating a case between a divorcing husband and wife.  The wife, Nancy, resides in Springfield, and the husband, Carl, now resides in York, a city within the same state, but over 400 miles away.  Nancy filed the no-fault divorce action against Carl approximately nine months ago.  The case was referred to mediation by the court when the parties could not agree to issues relating either to the division of marital assets or to the division of parenting time.  You have conducted all requisite screening for this case, and you have found no reason not to mediate this case.

In your pre-mediation discussions with the parties, you have learned quite a bit about Nancy and Carl and their current situation.  Nancy and Carl have two children, ages 12 (PJ) and 9 (RC).  Currently, both of the children live in Springfield with Nancy.  Nancy works full-time, day shift, as a nurse practitioner in the local Springfield hospital.  She can see the kids off to school and then PJ watches RC until Nancy gets home from work.  Carl is a moderately successful novelist who has the freedom to work wherever he likes and lived in Springfield with Nancy and the kids until about three months ago, when he moved to York to be closer to his mother and his new girlfriend, Lisa.

Nancy’s and Carl’s relationship greatly deteriorated after Carl moved.  Nancy is very suspicious of Lisa and believes that Carl began seeing her before Nancy filed for divorce. Carl claims that they only started dating recently and that his mother’s failing health is the primary reason for the move. Nancy is adamant that Lisa not be able to spend any time near “her” children. Nancy now “requires” that for Carl to see the children, he must travel to Springfield and stay in Springfield for his visits. Carl does not have housing in Springfield and claims he cannot afford to stay in hotel rooms for his visitations. Accordingly, Carl stopped visiting his children and he refuses to pay child support on the basis that Nancy is “keeping his kids away from him.”

Given the great distance between the two parties, you have agreed to conduct this mediation partly online.  You reside in Springfield, and you invited Nancy to the mediation in your office.  Carl will participate via videoconference (such as Skype).  Carl is concerned that you will show favoritism towards Nancy, who is physically in your office.  Nancy is concerned that Carl will invite his mother (or worse, Lisa) to observe the mediation “off camera” in violation of their agreement to mediate privately.  As you consider how to respond to Nancy and Carl, what ethical concerns do you have as a mediator?

Professor Kristen M. Blankley is an Assistant Professor at the University of Nebraska College of Law.  Professor Blankley teaches and researches in the areas of mediation and arbitration.