Tuesday, June 11, 2013

Wisely Choosing a Mediator: Mediator Impartiality

My last several posts have discussed factors a lawyer or party should consider in selecting a great mediator. Today, I'd like to talk about mediator impartiality.

I have discussed this topic, one of the core values of mediation, in a much lengthier law review article: Teaching the Ethical Values Governing Mediator Impartiality Using Short Lectures, Buzz Group Discussions, Video Clips, a Defining Features Matrix, Games, and an Exercise Based on Grievances Filed Against Florida Mediators, 11 Pepp. Disp. Resol. L. J. 309 (2011).  You should be able to download it here


Greg Firestone, a Florida mediator, spoke about mediator impartiality at the October 2003 conference of the Association for Conflict Resolution.  He suggests you think about these issues along two dimensions that create four quadrants on a grid.  One side of the grid are the terms “parties” and “outcome.”  On the other side of the grid are the terms “relationship” and “conduct.”  The resulting four quadrants are: “relationship-parties,”  “conduct-parties,” “relationship-outcome,” “conduct-outcome.”  In searching for a mediator, you want someone who can maintain impartiality in these four quadrants.  The leading cause of ethics grievances filed against mediators in Virginia and Maine relate to impartiality.  It is the second most frequently cited basis for grievance complaints in Florida, Georgia, and Minnesota.

Mediator's Bias Arising Because of the Relationship to the Parties

The mediator’s impartiality towards the parties is often discussed in terms of conflict of interests.  When choosing a mediator you need to learn if the mediator has any current or prior relationships with the parties or their counsel.  

Does she accept referral fees from lawyers who regularly use her in mediation, therefore consciously or unconsciously creating a bias in favor of the referring attorneys and their clients?  Does she get most of her business from one company or firm?  Can she remain impartial to the party who is not the repeat player in the referral system?  Does the mediator sit on a Board with one of the parties?  Share the role of a church trustee with the other party?  Represented one party in a prior legal matter? Exclude anyone that has a relationship you feel may bias the mediator towards the party with whom he or she has had a prior relationship.  

Mediators should error on the side of over-disclosure of conflicts of interest or potential conflicts of interest.  They should check for conflicts with the same care imposed on lawyers by legal ethics rules.    

Mediators must also avoid creating any conflicts of interest during the course of the mediation – for instance, by buying stock in the company owned by one of the parties.  

Finally, mediators should avoid creating an appearance of impropriety by representing parties as a member of their profession of origin (i.e, lawyer, therapist, or accountant) in the future, in the same or similar matter.  Most ethics codes either prevent future representation in the same or similar matter or they limit future representation until a reasonable period of time has lapsed since the mediation.  It is fair game for you to ask a mediator how he handles the future conflict of interest issues? 
         
Mediator's Bias Arising Because of the Conduct or Attributes of the Parties

Next, you need to consider whether the mediator can maintain, through his or her conduct, neutrality towards the parties when he or she has problems that arise from the conduct or attributes of the parties.  

Will the mediator become frustrated, disrespectful, or heavy-handed if he or she believes you or your client is uncooperative?  Does he hold any racial or cultural biases?  Can he work with people that express racial bias?  Does she think in traditional ways that may impose gender biases or reinforce gender-role expectations in the mediation?  Does anger make him uncomfortable in a way that he may cut off your client’s expression of it?  Does crying make the mediator uncomfortable in a way that he may suppress the expression of sadness, fear, vulnerability, regret and other emotions expressed in this way or other ways?   Can she work with borderlines, narcissists, sociopaths and other high conflict personalities without those parties pushing her buttons or manipulating her?  Does her conduct favor repeat players or parties who may be paying a larger portion of the fee.  

The mediator should be willing to withdraw from the mediation if the parties perceive she is no longer impartial towards each party.

Mediator's Bias Arising Because of his/her Relationship to the Desired Outcome

The next quadrant helps us think about the mediators relationship or bias in favor of a particular outcome even if it is a settlement at all costs.  

Does the mediator brag about a high settlement rate?  Will he work hard for his settlement rate even if it requires coercive interventions that disfavor one party?  Has the mediator succumbed to perceived pressure from referring courts to maintain a high settlement rate?   

Does he have a vested interest in the outcome because his fee is based on a percentage of the agreed settlement?   “Lawyers should decline to retain a mediator whose fee is based on a percentage of the ultimate settlement [where not precluded by the ethics code].  [I]t smacks of impropriety and at the very least, raises serious questions about the mediator’s ability to remain neutral.”  Does he unnecessarily prolong a mediation just to earn additional fees?  

Does she believe that all civil rights related mediations must result in an agreement consistent with Title VII law?   Can he mediate with impartiality as to the outcome in an air pollution case if his son suffers from severe asthma?  Can she mediate with impartiality an abortion clinic real estate boundary dispute if she opposes abortion?  These questions highlight the concern that a mediator will push a party towards a particular outcome because the mediator consciously or subconsciously prefers that outcome. 

Mediator's Bias Arising Out of his/her Conduct Affecting the Outcome

Finally, this last quadrant of the grid focuses on party self-determination and a mediator’s conduct that undermines it.  The mediator may lack skill in supporting party-self determination.  She may also not care very much about it or truly respect it as a core value of mediation.  Thus, he or she may use coercion, intimidation, or other heavy-handed tactics to get an agreement?    She may rely too much on her legal skills by offering legal advice.  He may add terms to the settlement agreement on which the parties have not agreed?

Conclusion

Choosing the mediator is the most important decision you will make on behalf of the client who plans to participate in mediation.  Make the choice wisely and with care.   

What factors do you consider important in the choice of a mediator?  I'd like to know. 

This article first appeared in the St. Louis Lawyer, April 2005, and was reprinted in The Insurance Receiver, Summer 2005, at 11 and at http://mediate.com/articles/young16.cfm (footnotes in the original are omitted in this posting).

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