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.
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 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.
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