Mediator Ethics Jeopardy Kansas State University September 2017 Art Thompson

1. Mediator Ethics JeopardyKansas State UniversitySeptember 2017Art Thompson

2. Mediator Ethics Jeopardy

3. Confidentiality • How to deal with hidden assets? (7) • Should the mediator report a threat? (12) • What if a party is unable to freely exercise self-determination? (16) • May the mediator, after mediation, contact counsel by telephone in a further effort to resolve the matter? (23)

4. Neutrality • Can a mediator ask a series of legal questions in a caucus as part of a brainstorming exercise? (26) • Court issues an order for the mediator to testify? (31) • Can an attorney mediate a pre suit pro se mediation and have the final judgment entered by the court on behalf of one or both parties? (33) • May a mediator report that a party and/or counsel failed to attend mediation? (35)

5. Conflict of Interest • Can a mediator also serve as a special master in the same case? (39) • You know the referring attorney! (41) • A party attended a parenting education course taught by the mediator! (44) • A student is sitting in a mediation to get their training approval. One party doesn’t speak English and the student translates. Is this acceptable? (46)

6. ATTORNEY MEDIATOR • Can an attorney mediator discuss the legal issues of the dispute with one or all parties? (48) • Can an attorney mediator assist parties who have settled through mediation with any court forms? (56) • Can the attorney-mediator act as an attorney for a party after the completion of the mediation process? (59) • What if the attorney-mediator learns there are hidden assets they a party is hiding? (61)

7. CONFIDENTIALITYQuestion 1 What is the duty of a mediator who is informed during a caucus of a family (divorce) mediation that one spouse possesses an asset of which the other spouse has no knowledge?

8. CONFIDENTIALITY Since disclosure of the information would be a confidentiality violation and non-disclosure of the information would affect the integrity of the agreement, the mediator should consider withdrawing from the mediation unless the party discloses the asset. Florida Advisory Opinion 95-005

9. SC Rule 903 (e) Confidentiality:Comment If the mediator holds private sessions with a party, the nature of these sessions with regard to confidentiality should be discussed prior to undertaking such sessions.

10. SC Rule 903 (e) Confidentiality:Comment In order to protect the integrity of the mediation, a mediator should avoid communicating information about how the parties acted in the mediation process, the merits of the case, or settlement offers. The mediator may report, if required, whether parties appeared at a scheduled mediation.

11. AUGUST 2005 MODEL STANDARDS OF CONDUCTFOR MEDIATORS B. A mediator who meets with any persons in private session during a mediation shall not convey directly or indirectly to any other person, any information that was obtained during that private session without the consent of the disclosing person.

12. CONFIDENTIALITY Question 2 A mediator is assigned a case involving a husband and wife suing the husband's ex wife.  In the course of mediation the ex wife jumps to feet and using a pencil (supplied by mediator) makes stabbing motion and yells "I'll kill you."  Should the mediator report the threat?  

13. CONFIDENTIALITY The mediator should neither voluntarily report this incident nor voluntarily testify about the incident. Florida Advisory Opinion 96-005

14. K.S.A. 5-512 (b) The confidentiality and privilege requirements of this section shall not apply to: (3) any information that is reasonably necessary to stop the commission of an ongoing crime or fraud or to prevent the commission of a crime or fraud in the future for which there was an expressed intent to commit such crime or fraud;

15. Can the mediator indicate that they do not believe the case is appropriate for mediation?

16. CONFIDENTIALITY Question 3 Can the mediator make a determination of a party being “unable to freely exercise self-determination” without revealing a basis for the determination and so involving the mediator in the confidentiality aspects of the hearing?

17. SC Rule 903 (e) Confidentiality:Comments In order to protect the integrity of the mediation, a mediator should avoid communicating information about how the parties acted in the mediation process, the merits of the case, or settlement offers. The mediator may report, if required, whether parties appeared at a scheduled mediation.

18. K.S.A. 5-512. Confidentiality of proceedings Any party, including the neutral person conducting the proceeding, participating in the proceeding has a privilege in any action to refuse to disclose, and to prevent a witness from disclosing, any communication made in the course of the proceeding. The privilege may be claimed by the party or anyone the party authorized to claim the privilege.

19. K.S.A. 5-512. Confidentiality of proceedings (b) The confidentiality and privilege requirements of this section shall not apply to: (4) any information that the neutral person conducting the proceeding is required to report or communicate under the specific provisions of any statute or in order to comply with orders of a court.

20. CONFIDENTIALITY In order to protect the integrity of the mediation, a mediator shall avoid communicating information about how the parties acted in the mediation process, the merits of the case, or settlement offers. The mediator may report, if required, whether parties appeared at a scheduled mediation. Florida Advisory Opinion 2000-003

21. AUGUST 2005MODEL STANDARDS OF CONDUCTFOR MEDIATORSSTANDARD VI. QUALITY OF THE PROCESS If a mediator is made aware of domestic abuse or violence among the parties, the mediator shall take appropriate steps including, if necessary, postponing, with drawing from or terminating the mediation.

22. Advisory Council on Dispute Resolution The council adopted the recommendation that not showing up for mediation can be considered not bargaining in good faith. The council also recommends that a mediator can indicate that “parties are not suitable for mediation.” This can be used when there are factors which might preclude one or more parties from participating in mediation. (10-03-08)

23. ConfidentialityQuestion 4 Absent a continuance of the mediation (which usually is resisted), may the mediator, after mediation, contact counsel or party by telephone in a further effort to resolve the matter, provided that confidentiality continues to be maintained?

24. Florida Mediator Ethics Advisory Committee With consent of counsel and the parties [or the parties alone, if not represented by counsel] and a stipulation of confidentiality, a mediator may continue to help the parties reach a voluntary agreement after no agreement is reached at the initial mediation conferences.

25. North Carolina Gen. Stat. §7A-38.1(l) “No mediator … shall be compelled to testify or produce evidence concerning statements made and conduct occurring in the anticipation of, during, or as a follow-up to a mediated settlement conference….”

26. NEUTRALITYQuestion 1 Can the mediator suggest with specificity possible settlement alternatives? It should be noted that the elements of settlement alternatives were not raised by either party, but were solely those raised by the mediator.

27. NEUTRALITY The mediator must assess the interaction of the parties, their demeanor during the mediation and whether making such “suggestions” would be inferred as intimidation or coercion by the parties. The Committee recommends using the tool of “open ended questioning” may be preferable to making specific suggestions. Florida Ethics Opinion 2010-006

28. A mediator may ask a party the question “Have you considered the possibility of [specific settlement alternative] as meeting the needs and objectives that you are seeking?” Asking a party a question which prompts them to consider a specific settlement alternative “suggestion” in this manner is appropriate and consistent with concepts of impartiality, party self-determination, and the appropriate role of the mediator.

29. Follow-up Question Can a mediator ask a series of questions in a caucus as part of a brainstorming exercise to encourage a party to consider what they need to be aware of in order to be able to settle a dispute?

30. Florida Ethics Opinion 95-002 It is improper for a mediator to provide legal advice even if framed as a question.

31. NEUTRALITYQuestion 2 • In a case where a court, notwithstanding the statutory provision, issues an order for the mediator to testify, what should the mediator do?

32. NEUTRALITY K.S.A. 5-512 (b) The confidentiality and privilege requirements of this section shall not apply to: (4) any information that the neutral person conducting the proceeding is required to report or communicate under the specific provisions of any statute or in order to comply with orders of a court.

33. NEUTRALITYQuestion 3 Can an attorney who is an approved family mediator mediate a pre suit pro se mediation and have the final judgment entered by the court on behalf of one or both parties?

34. NEUTRALITY Supreme Court Rule 901 (c) Upon withdrawal, the attorney-mediator shall not continue to act, in any capacity, on behalf of any of the parties in the matter that was the subject of the mediation.

35. NEUTRALITYQUESTION 4 May a mediator report that a party and/or counsel failed to attend mediation?

36. Florida Ethics Opinion2006-008 Yes, a mediator may report to the court that a party or counsel has failed to attend a mediation if this conclusion is based on observation by the mediator.

37. Florida Ethics Opinion2006-008 The Committee distinguishes a report of “physical failure to attend” from a report to the court that a party “did not have full settlement authority.”

38. Kansas Supreme Court’s Advisory Council on Dispute Resolution The Council recommends the policy that a mediator in Kansas can report to the court that the dispute is “inappropriate” for mediation.

39. CONFLICT OF INTEREST Question 1 Can a mediator also serve as a special master in the same case? (Case manager, conciliator arbitrator, etc?)

40. CONFLICT OF INTEREST The Kansas Court of Appeals held that it is the better practice not to assign the dual role of master and mediator to the same person; however, a party must make this proper objection before the master files his report in order to be timely or appealable. Schauf v. Schauf, 2005 WL 497133 (Kan. App., March 4, 2005).

41. CONFLICT OF INTEREST Question 2 You have been selected as the mediator in a case in which the defendant is represented by a lawyer who has selected you to mediate four previous cases during the past year. In addition, that same lawyer has been a coach in your mediation class during the present semester. Can you mediate this case?

42. CONFLICT OF INTEREST SC Rule 903 (c) Conflicts of Interest: A mediator shall disclose all actual and potential conflicts of interest reasonably known to the mediator. After disclosure, the mediator shall decline to mediate unless all parties choose to retain the mediator. The need to protect against conflicts of interest also governs conduct that occurs during and after the mediation.

43. AUGUST 2005 MODEL STANDARDS OF CONDUCTFOR MEDIATORS C. A mediator shall disclose, as soon as practicable, all actual and potential conflicts of interest that are reasonably known to the mediator and could reasonably be seen as raising a question about the mediator’s impartiality. After disclosure, if all parties agree, the mediator may proceed with the mediation.

44. CONFLICT OF INTEREST Question 3 Is a mediator precluded from mediating a case in which one or more of the parties attended a parenting education course taught by the mediator?

45. CONFLICT OF INTEREST A mediator has a responsibility to disclose all actual and potential conflicts reasonably known to the mediator and could reasonably be seen as raising a question of impartiality. If all parties agree to mediate after being informed of conflicts, a mediator may proceed with mediation. If, however, the conflict of interest casts serious doubt on the integrity of the process, the mediator shall decline to proceed. Supreme Court Rule 903 (c) Comments.

46. Conflict of InterestQuestion 4 A student is sitting in a mediation to get their training approval. One party doesn’t speak English and the student translates. Is this acceptable?

47. Florida Supreme CourtMediator Ethics Advisory Committee A trainee observing a mediation to fulfill mentoring requirements for initial mediator certification may not serve in the dual capacities of trainee and language translator or interpreter. (Opinion Number 2014-009)

48. Attorney MediatorQuestion 1 Can an attorney mediator discuss the legal issues of the dispute with one or all parties?

49. Attorney MediatorSC Rule 901 • (b)(2) The attorney-mediator defines the legal issues to the parties only in the presence of all parties in the matter;

50. FLORIDAMEAC 95-002 It is improper for a mediator to provide legal advice even if framed as a question MEAC 2009-007 Consistent with the standards of impartiality and preserving party self-determination, a mediator may provide information that the mediator is qualified by training or experience to provide.