Recently, the ABA Section of Dispute Resolution Committee on Mediator Ethical Guidance was asked whether a family law mediator, who is a full-time court employee, may engage in advocacy regarding family law policy issues, such as custody and parenting time. This advocacy may include, among other things, testifying before legislative bodies, lobbying individual legislators, and being a member of a group or speaking at conferences that advocate particular policy positions on family law issues.
In answering the question, the committee applied the American Bar Association Model Standards of Conduct for Mediators (2005), assuming that the inquiring mediator is not a judge currently serving on the bench, in which case the mandatory Code of Judicial Ethics would supersede the aspirational provisions of the Model Standards. And the committee suggested that if the mediator is a family law practitioner, he or she should also consider the aspirational Model Standards of Practice for Family and Divorce Mediation.
In particular, the committee focused on one of the stated goals of the Standards—to promote public confidence in mediation as a process for resolving disputes. The committee also considered various other ethical standards, addressing the role of parties as the final decision makers in the mediation process, as well as requirements that mediators remain impartial, decline gifts or other items of value that raise a question of actual or perceived impartiality, withdraw if their ability to remain impartial is compromised, make reasonable inquiries to assess conflicts, and disclose any facts that might raise a question of partiality.
Judges are limited in their ability to participate in advocacy activities through a group or organization because of the risk that the public will perceive the judge as fostering, supporting, or subscribing to the public policy, legal philosophy or legal position advocated by the group or organization. That activity may lead the public to conclude that the judge will not remain impartial in administering the law and in issuing decisions on the outcomes of cases coming before him or her.
Mediators, on the other hand, do not face the same constraints. Unlike the highly cautious and preclusive approach taken under the Canons of Judicial Conduct, the Model Standards do not expressly preclude advocacy-related activities by mediators. In fact, the Model Standards support outreach and educational activities if the mediator conducts them consistent with its provisions. However, the Model Standards do require the mediator to repeatedly assess—before, during and after a mediation—whether the advocacy-related activities might create an actual, potential, or perceived conflict of interest or a source of favoritism, bias or prejudice that could undermine the quality, effectiveness, and “integrity” of the specific mediation the mediator is handling or has handled.
If that assessment reveals a lapse in the ability of the mediator to conduct a mediation in an impartial manner, the mediator must withdraw. Secondarily, and arguably of lesser importance under the Model Standards, the advocacy-related relationship or activity should not undermine public confidence in the mediation process as a means for resolving disputes.
If a mediator is engaged in advocacy-related activities, he or she must disclose any facts that might raise a question that the mediator has an actual or potential conflict of interest. Failure to do so might cause a party who subsequently discovers this information to suspect that the mediator was biased toward one of the parties or that the outcome in that mediation was tainted by the advocacy-related beliefs or opinions of the mediator. Disclosure of these activities in advance allows the parties to make a knowing assessment of whether to use the mediator, supports party self-determination and minimizes any suggestion that the mediator was not acting impartially. A mediator who participates in a family law mediation should therefore disclose to the parties his current and past participation in all the identified activities.
The Model Standards prohibit soliciting new business in a way that creates an appearance of partiality or undermines the integrity of the mediation process. A mediator should therefore reject compensation, gifts, or other items of value from an advocacy organization for training, speaking, or playing advocacy roles, if that item of value “raises a question as to the mediator’s actual or perceived impartiality.” In addition, a mediator using his relationship with an advocacy group to generate new business, through public speaking opportunities or by playing other roles in the organization, would need to ensure that the activities do not make mediating in future cases problematic because the mediator has created “an appearance of partiality for or against a party,” or because the mediator’s association with those activities “otherwise undermines the integrity of the process.”
Further, if the advocacy activities might affect a mediator’s orientation to the substantive outcome in the mediation, or give rise to favoritism, bias or prejudice against one of the parties for his or her “values or beliefs,” the mediator should withdraw.
Keeping in mind these various issues, the committee concluded that the mediator can engage in advocacy-related activities but should disclose to the parties in a family law mediation his current and past participation in the identified activities so that the parties can then make an informed choice about whether to retain the mediator to handle the particular dispute. The mediator should exercise caution and good judgment in pursuing any advocacy related activities in the family law context.
For a full version of Opinion SODR-2011-1, visit the Section of Dispute Resolution's Committee on Mediator Ethical Guidance webpage at http://apps.americanbar.org/dch/committee.cfm?com=DR589300.
The ABA Section of Dispute Resolution Committee on Mediator Ethical Guidance provides advisory responses to requests for ethical guidance. The committee includes ADR practitioners, academics and leading ADR ethical experts from the public and private sector. The committee accepts inquiries from members, non-members and may also consider an issue on its own initiative. While it may draw on other sources of authority, such as opinions or other guidance issued by state ethics authorities, its focus is on interpreting the American Bar Association Model Standards of Conduct for Mediators (2005) (“Model Standards”) and applying them to the issue presented. The committee may, from time to time, also consult with the for Professional Responsibility and the ABA Standing Committee on Ethics and Professional Responsibility, as appropriate.
The Committee is accepting inquiries and providing advisory responses to your requests. To submit an inquiry, go to: http://www.abanet.org/dispute/documents/IntakeFormFINAL.doc.
Kimberly Taylor serves as the COO of JAMS and oversees operations in the . Working directly with the president and CEO, and leading a team that spans 23 resolution centers nationwide, Ms. Taylor is responsible for the company’s day-to-day operating activities. Ms. Taylor previously served as JAMS associate general counsel. She serves as Co-Chair of the Section of Dispute Resolution Committee on Mediator Ethical Guidance. She can be contacted at email@example.com.
Roger C. Wolf is law school professor emeritus at the of of Lawand is the founder of C-DRUM, the 's Center for Dispute Resolution. A long time mediator and trainer, he is the past Co-Chair of the Section's Ethics subcommittee and is Co- Chair of the Section’s Committee on Ethical Guidance. He can be reached at firstname.lastname@example.org.