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Conflict of Duties: Mediation Confidentiality v. Fellow Attorney Misconduct

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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.

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Harrison Barnes does a weekly free webinar with live Q&A for attorneys and law students each Wednesday at 10:00 am PST. You can attend anonymously and ask questions about your career, this article, or any other legal career-related topics. You can sign up for the weekly webinar here: Register on Zoom

Harrison also does a weekly free webinar with live Q&A for law firms, companies, and others who hire attorneys each Wednesday at 10:00 am PST. You can sign up for the weekly webinar here: Register on Zoom

You can browse a list of past webinars here: Webinar Replays

You can also listen to Harrison Barnes Podcasts here: Attorney Career Advice Podcasts

You can also read Harrison Barnes' articles and books here: Harrison's Perspectives

Harrison Barnes is the legal profession's mentor and may be the only person in your legal career who will tell you why you are not reaching your full potential and what you really need to do to grow as an attorney--regardless of how much it hurts. If you prefer truth to stagnation, growth to comfort, and actionable ideas instead of fluffy concepts, you and Harrison will get along just fine. If, however, you want to stay where you are, talk about your past successes, and feel comfortable, Harrison is not for you.

Truly great mentors are like parents, doctors, therapists, spiritual figures, and others because in order to help you they need to expose you to pain and expose your weaknesses. But suppose you act on the advice and pain created by a mentor. In that case, you will become better: a better attorney, better employees, a better boss, know where you are going, and appreciate where you have been--you will hopefully also become a happier and better person. As you learn from Harrison, he hopes he will become your mentor.

To read more career and life advice articles visit Harrison's personal blog.

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