What are a mediator’s ethical obligations if he or she learns during the course of a mediation that one side, unknown to the other, has initiated a referral of the other side’s conduct for prosecution to law enforcement authorities, but asks the mediator not to share that information in private caucus?
The Committee on Mediator Ethical Guidance considered this scenario in the context of an employment dispute in which the employer sued a former employee for the unauthorized taking and/or duplication of the employer’s sensitive electronic data shortly before the employee left his job with the employer. The committee was asked to offer guidance on what the mediator may do to alert the employee of the risk of a possible forthcoming criminal prosecution if the employee fails to resolve the pending civil suit with the former employer.
Because the employer had referred the matter for possible prosecution prior to the mediation, there was no issue of the employer trying to use the mediation to negotiate a civil settlement in mediation in exchange for not pursuing the criminal charge. Rather, the fact of the referral was made “in a rather off-hand manner” to the mediator during a private caucus.
The Model Standards of Conduct for Mediators, Standard V(B)—which concerns confidentiality—provides that a mediator who receives information in private session during a mediation “shall not convey” that information “directly or indirectly” to any other person without the consent of the disclosing party—in this case, the employer.
In the factual situation presented to the committee, the employer did not authorize the mediator to disclose the information. “Direct” disclosure is pretty clear, but what might constitute “indirect” disclosure in this scenario? The mediator might be tempted to ask the employee’s counsel: “Based on your experience, how often does an employer refer a case like this to the police or prosecutor for possible criminal prosecution?” Alternatively, the mediator might be tempted to ask the employee: “Do you know whether your former employer has referred these types of cases to the police or prosecutor for possible criminal prosecution?” A broad interpretation of the “directly or indirectly” limitation found in the Standards would seem to preclude these types of questions, especially because Standard V(B) contains the mandatory language “shall.”
Instead, a mediator might develop some general questions that do not make direct or indirect references to the confidential caucus communications but still allow the employee to consider the possible consequences of failing to settle in the mediation. For instance, a mediator might more generally ask: “If you do not settle this matter in mediation, what likely options exist for both you and the employer to resolve the issues arising from your departure from your job?” The mediator might also ask: “What risks do you face if you do not settle this case?” Because a mediator might routinely pursue this line of questioning as part of the mediation process to promote thoughtful consideration of the costs and benefits of settlement to support party self-determination and to enhance informed decision-making, asking these questions would not be considered as designed specifically to alert the employee “indirectly” of the referral. During this analysis of the consequences of not settling, the employee or his or her counsel might likely raise the possibility of a criminal prosecution.
The committee also recognized that mediators working in this practice area might regularly explore likely options and outcomes with the employee in the event the employee does not reach an agreement with the employer. That exploration might normally include some questions about the potential for a criminal prosecution. Accordingly, under a narrow interpretation of the “directly or indirectly” language of Standard V(B), a mediator would not be precluded from asking his or her regularly asked reality-testing questions, even those identified above, simply because a party raised the same issue, risk, or concern in an earlier caucus.
A mediator might feel a strong sense of moral obligation to the employee to alert him or her to a risk of criminal prosecution. The mediator might also be concerned that without knowledge of this threat, the employee cannot make a free and informed choice about the outcome, as required by the self-determination provisions of Standard I of the Model Standards. Standard I(A)(2) acknowledges, however, that the “mediator cannot personally ensure that each party has made free and informed choices.” One can assume that if the employee is represented by counsel, he or she has been warned of the possibility of criminal prosecution. Even if counsel is not experienced, or if the employee appears without representation at the mediation, the mediator need not fill the information gap.
Standard I(A)(2) advises the mediator to “make the parties aware of the importance of consulting other professionals to help them make informed choices,” and Standard VI(C) permits the mediator to postpone the mediation to ensure that the mediator can conduct the mediation in a manner consistent with the Standards. A postponement would allow an unrepresented party to consult with counsel if he or she decided to do so.
Of course, the mediator is not precluded from urging the employer to permit disclosure of the specific information. In fact, the mediator is encouraged to do just this. Standard VI(A)(4), which governs Quality of the Process, encourages the mediator to “promote honesty and candor between and among all participants.” Accordingly, the mediator could encourage the employer to make the disclosure of the fact that the employer has referred the case for potential criminal prosecution directly to the employee or consent to the disclosure of the confidential communication by the mediator (Standard V(B)). However, it is beyond the scope of the committee’s Opinion to suggest how the employer would share that fact with the employee while staying within the ethical or legal constraints imposed on negotiators in this context, in which the disclosure may be viewed as an inappropriate quid pro quo offer.
In summary, the Model Standards of Conduct for Mediators preclude the disclosure of confidential caucus information, either “directly or indirectly,” to the employee or his or her counsel without the consent of the employer. A mediator may, however, ask some questions similar to the ones set out in this opinion that do not make direct or indirect references to the confidential caucus communications but that still allow the employee to consider the possible consequences of failing to settle in the mediation.
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 ABA members and 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 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 ABA Center for Professional Responsibility and the ABA Standing Committee on Ethics and Professional Responsibility, as appropriate.
For a full version of the opinion, SODR 2009-2, visit the Section of Dispute Resolution’s Ethics Resources, available at www.ambar.org/disputeresources .