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Ethics Articles
What's NewWisconsin Amends Unauthorized Practice of Law Rule to Expressly Permit Mediation Advocacy in Wisconsin of Cases Pending Elsewhere, Without Bar Membership (11/18/08) Keith Seat Effective January 1, attorneys need not be members of the Wisconsin bar in order to appear as advocates in mediations or arbitrations in the state, if the attorneys are handling the matter in another jurisdiction where they are members of the bar. No mention is made of any requirement for the mediators themselves. The Wisconsin amendments are based on the ABA Model Rules of Professional Conduct.
In re Petition of the State Bar to Amend Ch. 20 of the Wisconsin Supreme Court Rules, No. 06-06 (July 30, 2008) Con Artist Acting as Mediator Jailed (11/05/08) Keith Seat A disbarred lawyer acting as a divorce mediator improperly presented himself as an attorney and conned dozens of victims into paying him large amounts of money. He was able to sidestep enforcement efforts for some time by hiding behind the confidentiality provisions of mediation, but eventually was convicted on 24 counts of theft and fraud, having billed 25 victims for $300,000. He would sometimes become romantically involved with the wives of divorcing parties, with one paying him $87,000 for “mediation” services. In addition to imprisonment, the ex-lawyer will be required to provide restitution from his assets which have been seized.
Arizona Republic (October 10, 2008); ADR Prof Blog (October 13, 2008) Florida Appellate Court Reverses Severe Sanctions for Breach of Mediation Confidentiality (10/08/08) Keith Seat A workers compensation claimant checked with his doctor after his employer stated in mediation that the doctor had made inconsistent recommendations about whether surgery was needed. When the doctor responded in writing that he had always urged surgery, the employer successfully moved to have the workers comp claims dismissed with prejudice due to breach of mediation confidentiality requirements. The Florida appellate court reversed dismissal of the claims as being too severe a sanction, discussed a range of appropriate sanctions, and remanded the case to the judge of compensation claims for further action.
Hill v. Greyhound Lines, Inc., No 1D07-1188 (Fla. App. 1st Dist., August 29, 2008) Judge Faces Discipline for Appointing as Mediator a Lawyer Who Provided Discounted Divorce Representation (10/08/08) Keith Seat The Minnesota Supreme Court is investigating a county judge who received a $63,000 discount on attorneys fees in his contentious divorce, and then appointed his attorney as mediator in cases that came before him. The judge’s current counsel asserts there was no connection between the discount and referrals. The investigation was begun after a complaint of special treatment by the judge’s ex-wife.
Minneapolis Star Tribune (August 28, 2008) Law Firm Name Not Allowed to Include “Mediation” in Rhode Island (8/27/08) Keith Seat A solo practitioner may not include the word “mediation” in the lawyer’s firm name, according to an Ethics Advisory Panel of the Rhode Island Supreme Court. Even though certain trade names may be used by lawyers, the Panel explained that inclusion of “mediation” would be misleading since consumers might assume that the court has jurisdiction to regulate mediation as it does the practice of law, when in fact the court does not regulate private mediation practices.
Rhode Island Lawyers Weekly (August 11, 2008) (Subscription Required); Rhode Island Supreme Court Ethics Advisory Panel Opinion No. 2008-01 Structured Settlement Etiquette (8/24/08) Geoff Sharp Those mediators who work in jurisdictions where structured settlements are the go may be interested in Mediation Etiquette 101...You Shouldn't Call The Opposing Expert Out in The Hall In Front Of Their Client! California Supreme Court Reverses Ghaderi: No Estoppel or Implied Waiver of Mediation Confidentiality (7/30/08) Keith Seat The California Supreme Court unanimously reversed the appellate court in Simmons v. Ghaderi, and concluded that a party is not estopped from asserting mediation confidentiality despite having litigated the details of the mediation for fifteen months. The case arose when Dr. Ghaderi gave her insurer permission to settle a medical malpractice case in mediation and then changed her mind after an oral agreement was reached, but before a written settlement agreement was signed. In a comprehensive decision analyzing mediation confidentiality, the Court held that no judicial exceptions to the statutory scheme are allowable, other than express waiver by the parties or when due process is implicated. The Court closely reviewed California’s statutory provisions and legislative history and noted that despite the legislature’s awareness that some bad faith conduct would go unpunished, it chose mediation confidentiality as paramount in order to promote mediation.
Simmons v. Ghaderi, S147848 (Cal., July 21, 2008) Subpoena of Mediator Upheld on Appeal in New York (7/30/08) Keith Seat A New York appellate court affirmed the appellate division’s upholding of a subpoena of a mediator in Hauzinger v. Hauzinger, stating that one party signed a waiver releasing the mediator from maintaining confidentiality and the other party waived confidentiality by seeking disclosure from the mediator. The mediator was not allowed to assert a qualified privilege, since the privilege was waived by the parties, but the court expressly did not rule on the applicable state statute.
Hauzinger v. Hauzinger, 43 A.D.3d 1289, 842 N.Y.S.2d 646 (NY App. 4th, Sept. 28, 2007), aff’d, 2008 NY Slip Op. 05781 (NY Ct. App., June 26, 2008) Too many mediators, not enough mediations: is it fair to keep training neutrals with career prospects so grim? (6/10/08) Diane J. Levin Too many mediators, not enough mediations: is it fair to keep training neutrals with career prospects so grim? Last summer the Southern California Mediators Association posted to its blog an essay by mediator Christine von Wrangel provocatively titled, “Mediation: A Lucrative Career or a Ticket to the Poor House?“, a polemic directed against the many universities and training programs raising the career expectations of hundreds of mediator-hopefuls: Almost every... Whose opinion counts: should clients, not lawyers, be the ones to evaluate mediators? (6/10/08) Diane J. Levin Two respected thinkers in the mediation field, Leonard Riskin and Nancy Welsh, recently made available on the Social Science Research Network an advance copy of the law review article they co-authored, titled, “Is that All There is? The ‘Problem’ in Court-Oriented Mediation“. It takes a long, thoughtful look at the failure of court-connected mediation to fulfill its early promises and the extent to which it increasingly ignores the needs and interests of the clients at ... Missouri Bar Begins Mediation Program for Attorneys in Office Conflicts (6/06/08) Keith Seat Attorneys in disputes due to economic changes at their firm or communication problems will be offered free mediation by the Missouri Bar in a program beginning June 1, 2008. The process requires the consent of both parties and will be confidential unless serious ethical violations are uncovered. The Bar will only pay out of pocket costs for mediators, but more than 100 attorneys have volunteered.
Missouri Lawyers Weekly (April 28, 2008) (Subscription Required) Idaho Enacts Uniform Mediation Act (5/21/08) Keith Seat Idaho has enacted the Uniform Mediation Act (UMA), effective July 1, 2008, in order to establish confidentiality for mediation communications, with specified exceptions. The legislation is intended to encourage greater use of non-judicial mediation by providing confidentiality protections that are uniform with the recent rules adopted by the Idaho Supreme Court for court-annexed mediation. The Idaho legislation also incorporates the United Nations Model Law on International Commercial Conciliation, which is a supplement to the UMA for international commercial mediations, unless the parties agree otherwise. The UMA has now been adopted in the District of Columbia and ten states: Idaho, Illinois, Iowa, Nebraska, New Jersey, Ohio, South Dakota, Utah, Vermont and Washington state. North Carolina Court Requires Disclosure of Insurance Coverage Remaining Prior to Mediation (4/23/08) Keith Seat The North Carolina Business Court in Harco Harco National Ins. Co. v. Grant Thornton LLP, required the defendant to disclose the amount of insurance remaining under its liability policy immediately prior to mediation, even though the court did not require disclosure of all insurance information sought. The court relied on the requirement to mediate in “good faith” and held that refusing information about available insurance coverage was not good faith. The court noted that the North Carolina Supreme Court’s governing interpretation of the discovery rule, which requires disclosure of the “true facts” of insurance coverage, is broader than the analogous federal rule.
Harco National Ins. Co. v. Grant Thornton LLP, 2008 NCBC 5 (N.C. Bus. Ct. March 4, 2008) Ethical Negotiations (4/21/08) Phyllis Pollack The art of negotiation can present ethical dilemmas. As explained in the April 2008 (Vol. 11, No. 4) issue of Negotiation published by the Program on Negotiation at Harvard Law School, at times, negotiators will make decisions that clash with their own ethics. Such clashes can arise in a myriad of situations. For example, a negotiator may attempt to create value at the expense of others. The scenario given describes two pharmaceutical companies settling a patent-infringement... Mediator Ethics: Conflicts of Interest (3/31/08) Victoria Pynchon 1. Steadfast adherence to a strict moral or ethical code. 2. The state of being unimpaired; soundness. 3. The quality or condition of being whole or undivided; completeness. ETYMOLOGY: Middle English integrite, from Old French, from Latin integrits, soundness, from integer, whole, complete. American Heritage Dictionary, 4th Ed. 2000 I attended a seminar recently in which a retired Judge-mediator said the following from the podium -- "I don't tell a new client that... Court Permits Post-Mediation Evidence of Settlement Agreement from Mediator (3/18/08) Keith Seat In litigation over an alleged written settlement agreement, a New York court in Arben Corp. v. N.Y.S. Thruway Authority upheld the confidentiality of mediation and settlement discussions relating to the underlying dispute, but permitted post-mediation evidence from the mediator (who had become a paid consultant to the claimant, apparently to help enforce the purported settlement agreement) about whether or not a settlement agreement had been finalized and then breached. The court based its decision on a written agreement to mediate between the parties and on New York law (CPLR § 4547) which codifies the common law “settlement privilege.” The court concluded that negotiations concerning the underlying dispute between the parties were protected, but that CPLR § 4547 does not block efforts to prove the existence of a settlement agreement. The court explained that the policy goals of encouraging settlements requires the ability to prove when a settlement agreement has been reached.
Arben Corp. v. N.Y.S. Thruway Authority, No. 2008-036-308 (NY Ct. Cl., February 26, 2008) The Guerrilla vs. The Humanist Negotiator (3/09/08) Robert Benjamin This provocative article discusses and contrasts a hard-edged approach to negotiation with the recalcitrant Iranian administration that is in stark contrast to the more prevalent view of negotiation as a humanistic and rational enterprise. This goes to the heart of how negotiation and mediation are practiced, not just on a geopolitical level, but in all dispute contexts. Mediator Loses Certification in Virginia (3/05/08) Keith Seat A Norfolk mediator has lost his Virginia Supreme Court mediation certification as a result of signing forms stating that he had mentored or co-mediated with new mediators when he had not. The mediator, who founded the largest private mediation firm in Hampton Roads, has been decertified as a mentor for two years, and must re-apply for certification after nine months if he wishes to be recertified as a mediator. This is the first decertification of a mediator by the Virginia Supreme Court, although about 20 complaints have reached the formal stage of the Court’s mediation grievance process during the 14 years it has been in operation.
Virginia Lawyers Weekly (February 4, 2008) (Subscription Required) Alabama Again Introduces Mediation Confidentiality Legislation (3/05/08) Keith Seat Legislation has been introduced again this year in Alabama to add additional confidentiality protections to mediation, by providing that mediators in all mediations generally would not be required to testify or produce documents concerning mediation in any adversarial proceding. Adding this testimonial immunity is intended to increase public confidence in mediation. Ethical Codes and the Commercial Mediator (2/27/08) Geoff Sharp Over at ADR Prof Blog, Michael Moffit posts a PowerPoint presentation by Dwight Golann and Ellen Waldman on Ethical Codes and the Commercial Mediator.The underlying message is that ethical codes are clear, practice is not - ask any seasoned mediator, they'll say the same in a tired but resigned tone.Just two of the interesting angles on ethics covered in the slides include;1. Manipulation vs Reality Testing - including the use of fear - something this blog has attempted to tackle a while back... Idaho Introduces Mediation Confidentiality Legislation (2/06/08) Keith Seat Idaho recently introduced legislation to enact the Uniform Mediation Act (UMA) in order to establish confidentiality for mediation communications, with specified exceptions. Such legislation is intended to encourage greater use of non-judicial mediation by providing confidentiality protections that are uniform with the recent rules adopted by the Idaho Supreme Court for court-annexed mediation. The Idaho legislation also incorporates the United Nations Model Law on International Commercial Conciliation, which is a supplement to the UMA for international commercial mediations, unless the parties agree otherwise. Counsel in Contempt for Breaching Mediation Confidentiality (2/06/08) Keith Seat Despite acknowledging error and offering a formal apology, counsel for plaintiff in Williams v. Johanns was found in civil contempt by the U.S. District Court for the District of Columbia for filing a pleading containing statements made in mediation. The court held a show cause hearing and ultimately imposed a nominal fine, noting the importance of confidentiality in the mediation process.
Williams v. Johanns, 2008 WL 36633 (D.D.C., January 2, 2008) (Subscription Required) Utah Supreme Court Upholds Mediation Confidentiality, Seals Record, Recuses Trial Judges (2/06/08) Keith Seat The Utah Supreme Court in Reese v. Tingey Construction reversed the trial court’s order requiring counsel for a party to be deposed to determine whether the parties had orally agreed to settle during mediation, based on state law prior to the Utah Uniform Mediation Act taking effect on May 1, 2007. The Court emphasized the importance of confidentiality to the mediation process, noted that the limited statutory exceptions to mediation confidentiality were not met, and rejected the lower court’s notion that mediations contain both confidential and non-confidential portions and that counsel could be required to testify about the non-confidential aspects. The Court stated that parties are free to enter into oral agreements during mediation, but that a written agreement – even if just an email exchange – is needed for a party to obtain judicial assistance enforcing the settlement agreement, since the mediation is confidential. The Court criticized both the trial court and parties for freely discussing mediation communications in the litigation, sealed portions of the record containing confidential mediation information, and ordered any trial judges who had reviewed confidential information to recuse themselves from further proceedings.
Reese v. Tingey Construction, No. 200060594 (Utah, February 1, 2008) Mediator ethics: how professional codes of conduct fall short (2/04/08) Diane J. Levin ADR scholar and law professor Michael Moffitt has rightly lamented the lack of meaningful guidance that professional rules of conduct for mediators provide the practitioner. This is especially so when more than one ethical duty is at stake, since codes of conduct provide no instruction on how best to balance one ethical duty against another. A case from Pennsylvania demonstrates the challenges real-life issues raise. The York Daily Record reports on the controversy generated by the selection... Mediator Ethics (2/04/08) Jan Frankel Schau It's an interesting thing, mediator ethics. I know that many mediators, particularly those that had a stint as Judges in prior lives, advise the parties before them that they will beat up on each side until they get a settlement. I, on the other hand, tend to prefer to cast the whole event in a more positive light, by letting the parties know I'm there to partner with them to get the best deal--while telling the same to the other side. In the end, we achieve the same result: a settlement...
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