Mediation ethics and malpractice - what you need to know to be effective

Moderator John Bickerman opened the discussion of mediation ethics by inviting panelists Wayne Thorpe, a member of the council of the ABA Section of Dispute Resolution, and Dennis Drasco, a New Jersey Court approved mediator and past chair of the Section of Litigation, to give a brief synopsis of ABA actions in developing standards [PDF] in the area of mediation, after which he explained, "If you want to start a dispute, put a group of mediators in the room." Standards are still evolving, said Bickerman, and it is "essential that mediators and advocates work together." The Aug. 4 program, on "Mediation Ethics and Malpractice," was sponsored by the Section of Dispute Resolution during the ABA Annual Meeting,

"How does the mediation process progress? How does it start?," asked Bickerman. Keith Hunter, founder and president of Dispute Prevention and Resolution, Inc., responded that the process in which a mediator is selected requires due diligence on all fronts. What can be expected from the client? What kind of mediator is the person? What kind of mediator best fits the situation at hand?

Hunter said that a major debate about what kind of mediator best fits the circumstance centers around whether the client and advocate believe it's more important to have a mediator who is a process expert or more important to have a substantive expert. Drasco interjected that his clients want to know that mediators have substance expertise. Lela Love, professor of law and director of the Kukin Program for Conflict Resolution at Benjamin N. Cardozo of Law in New York City and co-author of a paper [PDF] on the "Intersection of Evaluation by Mediators and Informed Consent: Warning the Unwary," said there is one school of thought that a mediator must be a substance issue expert; but that an intelligent person – even though he or she may not be an expert on the issue – can ask questions and get people thinking about the process. And a neutral person can come in without expectations.

Thorpe weighed in saying that the ethics question that comes into play is that a mediator needs to be clear whether he or she is qualified to be a mediator in the specific situation, and to share that belief with his or her potential client. The advocate's role, he said, is to "find out what kind of expertise a mediator has and then to share that information with their client."

"What are the expectations of the parties involved?," posed Louis Chang, a practicing mediator, arbitrator and neutral dispute resolution service provider. Many times, clients and counsel want different things, and from an ethics standpoint, disclosure is vital.

Bickerman closed the discussion by raising the issue of conflicts of interest, reading Standard III, A and B, of the Model Standards of Conduct for Mediators. The panelists talked about specific situations, including complex construction industry mediation examples, and threat of malpractice, disclosure of relationship as to prior clients, and disclaimers.

Back to top