At a recent mediation, it occurred to me that one party had missed an important issue in the case.
What then is the duty of the mediator ? This may be of more significance where the mediator plays an evaluative role, as opposed to the more benign function of a facilitator.
Should they advise the party who has not raised this issue of this failing ? If this is answered affirmatively, presumably this information must be shared with the opposing party and also the fact that it was the mediator who has raised the issue.
Or should the mediator say nothing to either party ?
To my knowledge, there is no authoritative statement to be found on this issue in any of the institutional “rules”, such as the ADR Institute of Canada or any similar body.
One view expressed by a mediator far more experienced in the art than myself, Barry Fisher, is that this issue may be raised solely to the second party, as an incentive to settle immediately, lest the defect be rectified at a later stage.
With respect, this appears to be unfair to the other party. The flaw has been revealed to only one side, clearly in the interests of settlement, yet hidden from the second.
This raises many higher level issues, such as:
Is it ethical to raise this argument to only one side?
Who is the master of the mediator’s role ? Is it the goal of settlement ? Perhaps so.
Or is the objective to obtain the fairest settlement, justice in that sense?
It would seem to me that the path to be followed is to tell both parties of the apparent issue or neither. In the instant case before myself, I said nothing to either party.
I remain unconvinced that this is the correct decision.
The case did not settle. Perhaps it would have, had I raised the unpleaded issue.
My mandate in the case is well ended yet it troubles me that this issue remains.
Hey David, Happy New Year! Thought Provoking piece as many of your pieces are. I too have experienced the quandary you pose. While I very seldom if ever am as ‘black and white” as our good friend Barry I totally agree that we should not (and can not) tell the other side. I too have raised with the mistaken side that the issue will come up as the case continues and may be very embarrassing if it does. I have also found creative ways to settle the matter without resorting to what I consider to be a breach of my obligation and duty to the parties and to fairness. The more perplexing issue for me (and maybe it arises more clearly in my practice which as you know does not exchange offers until the very end where a settlement is reachable) is when I am sure the Plaintiff would accept 100 dollars and the Defendant is willing to pay substantially more. I would benefit from your view and more legalistic take if there is one.
The conundrum you raise is one I have faced over years of practice ~ an ill-informed self-represented party or a party represented by counsel who lacks knowledge and/or expertise. As laid out above, you don’t indicate (unless I missed it) whether the parties are represented by counsel. In any event, in similar circumstances I am guided, informed and required to consider and interpret, ADRIC’s Code of Ethics and Code of Conduct.
From ADRIC’s Code of Ethics:
3.A Member shall uphold the integrity and fairness of the arbitration and mediation processes.
8.A Member shall conduct all proceedings fairly and diligently, exhibiting independence and impartiality.
From ADRIC’s Code of Conduct:
3.3 The Mediator shall not provide legal or professional advice to the parties. The Mediator may express views or opinions on the matters at issue, and may identify evaluative approaches, and where the Mediator does so it shall not be construed as either advocacy on behalf of a party or as legal or professional advice to a party.
3.4 The Mediator shall, where appropriate, advise unrepresented parties to obtain independent legal advice. The Mediator shall also, where appropriate, advise parties of the need to consult with other professionals to help parties make informed decisions.
7.2 The Mediator shall conduct Mediations in a manner that permits the parties to participate effectively in the Mediation and that encourages respect among the parties.
7.5 A Mediator who considers that a Mediation in which he or she is involved may raise ethical concerns (including, without limitation, the furtherance of a crime or a deliberate deception) may take appropriate action, which may include adjourning or terminating the process.
These specific provisions of the 2 Codes, in my opinion, require me to not remain silent and default to the “parties right to self-determine their own resolution”. There is a potential that the outcome would disadvantage one party and you, as the mediator, are aware of that, which, in my view, violates the Codes. I may raise with unrepresented parties the importance of seeking independent legal advice prior to agreeing to terms. If the parties are gung-ho on resolution in their unknowingness of the potential oversight and disadvantage to one party, I may withdraw without specifying why. Whatever I decide to do in the moment, when faced with such an ethical dilemma, I will consider my own sense of ethics, my reputation and the Codes of Conduct and Ethics that inform my practice. I don’t believe remaining silent and passive serves me, the parties or the process well.