September 2013 Blog
Some courtroom attorneys live for the victory. You often hear them discuss their latest win or less often, you may hear them lament over a defeat. If you hang around a courthouse, you may hear a mediator say, “I settled the case today.” This statement may baffle some who know that mediators are supposed to be neutral third parties who lead the parties into settlement. But how much power does a mediator have during a negotiation? Can he or she directly settle a case? What is the ethical responsibility of a mediator?
First, mediators are governed by federal, state and local court rules. While the rules differ from state to state and jurisdiction to jurisdiction, most of them agree that the mediator should be a neutral third party. If the mediator has any ties to either party, he or she is required to disclose those ties. Many jurisdictions allow the parties to choose the mediator while in some cases the court may assign one.
Second, mediators have specific tasks they are to do during the process. Mediators should:
- Facilitate the parties’ discussion of the interest and needs.
- Assess and articulate the strengths and weaknesses of each party’s position.
- Facilitate the negotiation.
- Motivate the parties to settle.
If you notice, nowhere in the tasks listed above mention anything about the mediator “settling” the case. But some mediators who regularly say, “I have no power,” exert influence in such a way that it tilts the table one way or the other. Ethically, this is wrong. Mediators are mandated to be neutral and must find a way to bring the case and discussion back to center. In some states, if mediators are found to have “tilted the table” or had an influence on the settlement of a case, there could be sanctions.
The appropriate behavior of a mediator extends past influencing the case. In Florida, a mediator who commented on a woman’s appearance and jewelry was sanctioned. Mediators have also been sanctioned for violating confidentiality rules. What happens in mediation is supposed to stay in mediation given a few exceptions such as a confession of a crime.
The mediator may be elated when he or she leads the parties to a settlement. Is this a victory? In many ways it is. By settling the case, the parties avoided a costly and possibly lengthy court battle, which is the goal of mediation.
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If you have any disputes regarding General Business Issues, Real Estate, Personal Injury, Product Liability, Construction, Aviation and Insurance, contact Michael Rainey at 818.501.1618, visit http://michaelrainey.com, or email him at michael@michaelrainey.com. As a highly skilled neutral based in Encino, California, Michael brings the right combination of process and personality to successfully reach agreements in mediation, and to make appropriate decisions in arbitration.