var googletag = googletag || {}; googletag.cmd = googletag.cmd || []; googletag.cmd.push(function() { googletag.pubads().disableInitialLoad(); });
device = device.default;
//this function refreshes [adhesion] ad slot every 60 second and makes prebid bid on it every 60 seconds // Set timer to refresh slot every 60 seconds function setIntervalMobile() { if (!device.mobile()) return if (adhesion) setInterval(function(){ googletag.pubads().refresh([adhesion]); }, 60000); } if(device.desktop()) { googletag.cmd.push(function() { leaderboard_top = googletag.defineSlot('/22018898626/LC_Article_detail_page', [468, 60], 'div-gpt-ad-1591620860846-0').setTargeting('pos', ['1']).setTargeting('div_id', ['leaderboard_top']).addService(googletag.pubads()); googletag.pubads().collapseEmptyDivs(); googletag.enableServices(); }); } else if(device.tablet()) { googletag.cmd.push(function() { leaderboard_top = googletag.defineSlot('/22018898626/LC_Article_detail_page', [320, 50], 'div-gpt-ad-1591620860846-0').setTargeting('pos', ['1']).setTargeting('div_id', ['leaderboard_top']).addService(googletag.pubads()); googletag.pubads().collapseEmptyDivs(); googletag.enableServices(); }); } else if(device.mobile()) { googletag.cmd.push(function() { leaderboard_top = googletag.defineSlot('/22018898626/LC_Article_detail_page', [320, 50], 'div-gpt-ad-1591620860846-0').setTargeting('pos', ['1']).setTargeting('div_id', ['leaderboard_top']).addService(googletag.pubads()); googletag.pubads().collapseEmptyDivs(); googletag.enableServices(); }); } googletag.cmd.push(function() { // Enable lazy loading with... googletag.pubads().enableLazyLoad({ // Fetch slots within 5 viewports. // fetchMarginPercent: 500, fetchMarginPercent: 100, // Render slots within 2 viewports. // renderMarginPercent: 200, renderMarginPercent: 100, // Double the above values on mobile, where viewports are smaller // and users tend to scroll faster. mobileScaling: 2.0 }); });
×

Conflict of Duties: Mediation Confidentiality v. Fellow Attorney Misconduct

( 6 votes, average: 3.4 out of 5)
What do you think about this article? Rate it using the stars above and let us know what you think in the comments below.
While alternative dispute resolution processes have seen tremendous growth and support in the recent years, the lack of clear definitions on many fronts continue to plague attorneys engaged in such processes. One of the regions where this conflict is most painful is the conflict faced by attorneys serving as mediators in their balancing between mediation confidentiality and professional responsibility.

Even though most states have passed legislation mandating confidentiality for alternative dispute resolution and mediation processes, a large number of such rules work directly against rules of professional conduct that attorneys need to obey in reporting misconduct by fellow attorneys. Trying to decide between two mutually conflicting sets of obligations puts a mediating attorney in a fix, and the situation is quite common.


Mediation Confidentiality:

It is impossible for mediation to be effective without guarantees of confidentiality of discussions. Open negotiations and letting down guards to meet on common ground is impossible with the threat of someone turning witness in ensuing and subsequent litigation. Confidentiality also assures the role of the mediator as an unbiased third party. The mediator, not being an arbitrator, is nothing more than a catalyst, an unbiased advisor who moves ahead the mediation process to a logical outcome.

However, the attorney serving as a mediator is also witness to discussions and acts of fellow attorneys, which would be considered unethical, or outright as misconduct were the scales of attorney misconduct applied to mediation proceedings. Naturally, the stress on the mediator in not reporting the witnessing of such misconduct, and thereby running the risk of being construed as an accomplice or perpetrator in misconduct is substantial. Attorney disciplinary rules in most states are yet to address the issue with the importance needed. Coupled with this is a chain of decisions including NLRB v. Joseph Macaluso, Inc, where the court found that mediators cannot be asked to testify about the bargaining sessions they attended.

The Confusion:

The confusion stems originally from the varied and disparate meanings attributed to the term “confidentiality” and its application upon instant cases. The confusion escalates due to the lack of homogenous mediation rules in the country with almost every jurisdiction having their own statute concerning mediation proceedings.

National licensing or regulation of attorney-mediators are still at a nascent stage while in most states, rules of confidentiality find disparate applications according to evolving mediation statutes.

While the American Arbitration Association, the American Bar Association and the Society of Professionals in Dispute Resolution are trying to redress the situation by active pursuance of Model Standards of Conduct the application still falls short in addressing the conflicts felt by attorney mediators.

While evidence rules ‘recognize’ the ‘attorney-client’ relationships the extension of the protective umbrella to the cause of attorneys acting as mediators is yet to crystallize in definable forms of assurance.


About Harrison Barnes
Harrison Barnes is the founder of LawCrossing and an internationally recognized expert in attorney search and placement. Harrison is extremely committed to and passionate about the profession of legal placement. Harrison’s writings about attorney careers and placement attract millions of reads each year. LawCrossing has been ranked on the Inc. 500 twice. For more information, please visit Harrison Barnes’ bio.

About LawCrossing
LawCrossing has received tens of thousands of attorneys jobs and has been the leading legal job board in the United States for almost two decades. LawCrossing helps attorneys dramatically improve their careers by locating every legal job opening in the market. Unlike other job sites, LawCrossing consolidates every job in the legal market and posts jobs regardless of whether or not an employer is paying. LawCrossing takes your legal career seriously and understands the legal profession. For more information, please visit www.LawCrossing.com.


Featured Testimonials

Wow!! I found a perfect job with the help of LawCrossing's job listings. It is simply great!!
Amy


Facts

LawCrossing Fact #243: You can update your profile with multiple resumes and separate job searches.

 
Let's Do It!
Email:

Only LawCrossing consolidates every job it can find in the legal industry and puts all of the job listings it locates in one place.

  • We have more than 25 times as many legal jobs as any other job board.
  • We list jobs you will not find elsewhere that are hidden in small regional publications and employer websites.
  • We collect jobs from more than 250,000 websites and post them on our site.
  • Increase your chances of being seen! Employers on public job boards get flooded with applications. Our private job boards ensure that only members can apply to our job postings.
About Harrison Barnes

Harrison is the founder of BCG Attorney Search and several companies in the legal employment space that collectively gets thousands of attorneys jobs each year. Harrison is widely considered the most successful recruiter in the United States and personally places multiple attorneys most weeks. His articles on legal search and placement are read by attorneys, law students and others millions of times per year.

Success Stories

LawCrossing is great at picking up all of the legal listings everywhere across the internet. I could have gone to three different sites to search, but you had them all on your site. That was extremely helpful. LawCrossing is a one stop shop!
  • Eileen Baca-Penner New Mexico