In this feature, Sharon Press and Paul M. Lurie raise issues of professionalism and their practical applications.
At one point in a mediation, the parties appear to be stuck. The mediator offers a suggestion on how to resolve the dispute. Shortly thereafter, the parties sign an agreement based on that suggestion.
Has the mediator violated the ethical standards relating to self-determination?
For many of you, this brief description captures a typical mediation, so the thought that this could be a violation of an ethical standard may seem preposterous. We believe that closer examination is required.
We are keenly aware that mediation is extremely contextual and that each reader probably imagined the above scenario as taking place in the kind of mediation she or he usually encounters. Some readers pictured a complex civil case with highly sophisticated parties and counsel; others saw a couple in a family mediation without counsel present. Still others envisioned a small claims case with pro se parties. Every mediation is unique in that it involves a specific set of parties/litigants with a problem particular to them and a distinct set of circumstances that led to their being in mediation on that day. In the following paragraphs, we will explore how and why context matters when examining ethics, rendering the answer to the question posed above a resounding “it depends.” To answer the question of whether the mediator has violated ethical standards, we need additional information.
First, it is important to look at the ethical standards to which mediators are held. Standard I of the Model Standards for Mediators is entitled Self-Determination and includes the following provision: “… Self-determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome…”
Imagine the following contextual differences:
- The parties, in a voluntary, pre-suit mediation, are sophisticated litigants represented by highly skilled counsel who have thoroughly prepared their clients for the mediation.
- The parties to a mandatory employment discrimination mediation are both pro se and have continually referred to the mediator as “your honor.” Neither has ever been to court or to mediation before.
In the first scenario, the sophisticated parties represented by skilled counsel are unlikely to be inappropriately swayed by a mediator “suggestion.” Without additional information to suggest otherwise, one would anticipate that the parties were fully capable of exercising self-determination. Thus, it is unlikely (though not impossible) that there was a violation of Standard I. In the second scenario, however, mediators should be concerned about the seeming lack of self-determination exhibited by the parties who are new to mediation and do not seem to understand the process. At a minimum, further inquiry is needed to determine whether the parties came “to a voluntary, uncoerced decision in which [they made] free and informed choices as to [the]… outcome.”
Another element to consider is the timing. Consider the following possibilities:
- The parties (and their counsel) have been actively involved in the mediation for several hours. They had reserved a full day for the mediation, anticipating that the complexities of the issues might warrant that amount of time. They have made great progress and have gotten stuck on one final issue, the one on which the mediator offers a suggestion.
- The parties have just begun a mediation which is scheduled for a full day. At the conclusion of opening statements, the parties have presented very different views of the situation, and the mediator believes they are “stuck.” She immediately offers a suggestion as to how the dispute should be resolved.
- It is 9 p.m., and the parties have been at the mediation for 12 hours. Although they took a lunch break around noon, everyone agreed not to stop for dinner and push through to the end. The parties appear to be stuck, and the mediator makes a suggestion on how to resolve the dispute.
In the first scenario, the parties, who have been actively involved in a complex mediation that was expected to last many hours, receive a mediator suggestion. They have made great progress, so presumably they have had an opportunity to express their concerns. They are not feeling any pressure to resolve the issues immediately because they had scheduled the whole day for mediation. Although some mediators consider every mediator suggestion to be inappropriate, compromising a party’s self-determination, most would find no ethical violation here.
In the second scenario, immediately after opening statements, the mediator offers a suggestion on how the case should be resolved. Since the parties anticipated needing a full day to mediate, the mediator’s intervention at this point appears, at a minimum, to be ill-advised and not good practice. As students of conflict, we understand that it takes time for people in conflict to move from positions of anger or hurt and that mediators should provide an environment that allows for reflection and shifting of positions.
The final scenario is the most problematic, and variations of this theme often are raised by parties to mediation who file grievances against their mediators. For most people, dealing with conflict is stressful. It is also true that being under stress for 10 to 14 hours can cause people to make bad decisions – often just so they can get relief from the situation. While more information about the specific case would be helpful, this scene certainly raises the prospect that the parties were not acting in an “uncoerced” manner. Mediators should always be mindful of how parties are handling the stress of being engaged in the mediation while watching for signals that the parties are no longer exercising self-determination.
When a mediation exceeds eight hours, the presumption should switch: mediators should presume that the parties are no longer able to exercise self-determination. Absent a clear indication from the party (not his/her attorney), such as an unambiguous statement that the party understands that she or he is free to end the mediation but does not wish to do so for reasons the party can articulate, a mediator should end the session to give parties an opportunity to gain some unpressured perspective and ensure their ability to truly exercise self-determination.
Offering a resolution to the parties – even one that appears to be acceptable – puts mediators at risk of violating the parties’ self-determination. After all, if a grievance is filed against a mediator, the issue will be whether the parties believed they were able to exercise self-determination – not whether the mediator thought they were able to do so. To provide parties with a positive experience in mediation and provide clear guidance to mediators, we recommend that the Model Standards concept of “coercion,” as it relates to self-determination in mediation, be clarified. One reason for the lack of clarity in this area is that violations of self-determination and coercion in the legal context are difficult to reach absent egregious behavior. We believe that a different standard should be applied to mediations. Specifically, the meaning of Standard I, which defines self-determination as “the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices…” should be interpreted and understood to prohibit mediators from proposing a solution after a long day of mediation. Until the Model Standards are reexamined, this can be accomplished via advisory opinions provided by the Ethics Committees of the organizations that wrote and adopted the Model Standards: the American Arbitration Association, the American Bar Association, and the Association for Conflict Resolution. For instance, the ABA’s Mediator Ethical Guidance Committee provides advisory guidance on ethical issues pertaining to mediation.
We encourage mediators to proceed cautiously with their suggestions as the mediation day goes on and to seek advice from the organizations listed above when they have any doubts about how their practice conforms to the ethical standards.
Sharon Press is Professor of Law and Director of the Dispute Resolution Institute at Hamline University. Previously, she served for 18 years as director of the Florida Dispute Resolution Center. She can be reached at firstname.lastname@example.org. Paul M. Lurie is a partner with Schiff Hardin LLP in Chicago, IL. He has been legal counsel for major real estate owners, developers, and design and construction firms for more than 40 years. He now is a professional mediator and arbitrator. He can be reached at email@example.com.
 In her role as director of the Florida Dispute Resolution Center, Sharon was responsible for the Florida mediator grievance system and served as staff to a mediator ethics advisory panel that provided written responses to mediators regarding ethical issues. Sharon saw a number of grievances that resulted from late-in-the-day mediator proposals. Information on the Florida grievance process is available on the Florida Dispute Resolution Center web site: http://www.flcourts.org/resources-and-services/alternative-dispute-resolution/.
 The committee’s opinions and information on how to submit an inquiry can be found at http://ambar.org/ethicalguidance.