Mediation Settlement Week Mediation Ethics Focus on Court

Mediation Settlement Week: Mediation Ethics: Focus on Court Annexed Mediation Sponsored by THE NEW YORK PEACE INSTITUTE, CIVIL COURT, CIVIL BRANCH, NEW YORK COUNTY Copyright Simeon H. Baum 2014; Resolve Mediation Services, Inc. 1211 Avenue of the Americas, 40 th floor, New York, NY 10036 (212)355 -6527; fax (212) 753 -0396; http: //www. dispute. Resolve. com; email: Simeon. HB@dispute. Resolve. com

CARTOON: ETHICS

Defining Ethics l Not Easy! l Moral philosophy: a branch of philosophy that involves systematizing, defending and recommending concepts of right and wrong conduct.

Quite a Range l Philosophical ethics investigates what is the best way for humans to live, and what kinds of actions are right or wrong in particular circumstances. Meta-ethics (epistemology, meaning, ontics) l Normative ethics (actions – good? bad? ) l Applied Ethics - draws upon ethical theory in order to ask what a person is obligated to do in some very specific situation, or within some particular domain of action l

Normative Ethics l l l l Virtue ethics Stoicism Hedonism Cyrenaic hedonism Epicureanism State consequentialism Consequentialism Utilitarianism Deontology Contemporary virtue ethics Pragmatic ethics Role ethics Anarchist ethics Postmodern ethics

What are we trying to do?

What do we want from Lawyers?

What Are Mediators Trying to Do?

Trust

What are We Cultivating? l Talk & Listening l Understanding & Empathy l Insight & Empowerment l Creativity l Realistic Assessment l Decision Making l Truth & Acceptance

Our Ethics Follows Our Activities l I. SELF-DETERMINATION l II. IMPARTIALITY l III. CONFLICTS OF INTEREST l IV. COMPETENCE l V. CONFIDENTIALITY l VI. QUALITY OF THE PROCESS AAA/ABA/SPIDR(ACR) MODEL STANDARDS OF CONDUCT FOR MEDIATORS (1994, 2005)

SOME ETHICAL ISSUES 1. PRIOR RELATIONSHIP 2. WHITE LIE TO EFFECT SETTLEMENT? 3. TRUTH IN ADVERTISING 4. TASTE IN ADVERTISING 5. CONTINGENT FEE 6. KNOWLEDGE OF ATTORNEY MISCONDUCT 7. KNOWLEDGE OF ATTORNEY INCOMPETENCE

Confidentiality

Surrogate’s Court Mediation

Original Approach

Separation between Court & Mediator

STANDARD V. CONFIDENTIALITY l A. A mediator shall maintain the confidentiality of all information obtained by the mediator in mediation, unless otherwise agreed to by the parties or required by applicable law. l 1. If the parties to a mediation agree that the mediator may disclose information obtained during the mediation, the mediator may do so.

l 2. A mediator should not communicate to any non-participant information about how the parties acted in the mediation. A mediator may report, if required, whether parties appeared at a scheduled mediation and whether or not the parties reached a resolution…. l B. A mediator who meets with any persons in private session during a mediation shall not convey directly or indirectly to any other person, any information that was obtained during that private session without the consent of the disclosing person.

l C. A mediator shall promote understanding among the parties of the extent to which the parties will maintain confidentiality of information they obtain in a mediation. D. Depending on the circumstance of a mediation, the parties may have varying expectations regarding confidentiality that a mediator should address. The parties may make their own rules with respect to confidentiality, or the accepted practice of an individual mediator or institution may dictate a particular set of expectations.

Wells Fargo Hon. Cecelia G. Morris • What is Good Faith Participation? • What May Courts Enforce?

• Good Faith = Active Participation • Gestalt of Wells Fargo Pecadillos: • • • At a loss fully to understand issues Tell us issues in advance “No” to “any other issues” Tell us Who is Attending Worried re “free for all” & “waste of time” Junior Representative (VP, Sr. Banker for Client) Junior Attorney (10 year associate) Mantra: no $ from our pocket; Interruptions No Risk Analysis; “link” avoidance Report? 2 of us, 1 of you; Not using you again! Sole Offer – only after Court hearing (& low)

Wells Fargo Hon. William H. Pauley, III, DJ Good Faith = • Submit Pre-Mediation Statement • Attend with Full Settlement Authority

Wells Fargo • Who Controls the Process? • (Per SDNY BR Ct. : the Mediator) • Is Risk Analysis Fundamental to Mediation? • What is Integrity?

Lying – Stds 1, 6 l By Parties l By Counsel l By Mediator – Manipulation

Evaluation, Direction & Impact l Standard 1 – Self Determination – If not in Court setting & Evaluation is Sought by Parties/Counsel… l Standard 4 - Competence l Standard 6 - Quality of the Process l E. g. : Unlicensed K’or – no legal right to payment…

Advertising – Std 7 l Selection Process l Style disclosure

Compensation – Std 8 l Commercial l EDNY l NJ CDR Division

Impartiality (Std 2); Conflicts (Std 3) l Conflicts Check l How much must we research? – In big firms? – Solo? l Linked-In & Other Social Media?

MEAC Is Your Friend l Mediation Ethics Advisory Committee – Posted Opinions – Handles Inquiries (cdrcp@courts. state. ny. us) l http: //www. nycourts. gov/ip/adr/meac. shtml l https: //www. nycourts. gov/ip/adr/Publication s/Info_for_Programs/Standards_of_Conduct. pdf

SOME ETHICAL ISSUES 1. PRIOR RELATIONSHIP 2. WHITE LIE TO EFFECT SETTLEMENT? 3. TRUTH IN ADVERTISING 4. TASTE IN ADVERTISING 5. CONTINGENT FEE 6. KNOWLEDGE OF ATTORNEY MISCONDUCT 7. KNOWLEDGE OF ATTORNEY INCOMPETENCE

SOME ETHICAL ISSUES (cont’d) 8. KNOWLEDGE OF PARTY OR COUNSEL ABUSE OF PROCESS: e. g. , MEDIATION AS FISHING EXPEDITION 9. KNOWLEDGE THAT A PARTY HAS LIED TO OTHER PARTY 10. CONTROLLING THE OFFER STREAM? 11. PARTY THREATS OF CRIMINAL CONDUCT 12. PARTY PRESENT AND CONTINUING CRIMINAL CONDUCT

SOME ETHICAL ISSUES (cont’d) 8. KNOWLEDGE OF PARTY OR COUNSEL ABUSE OF PROCESS: e. g. , MEDIATION AS FISHING EXPEDITION 9. KNOWLEDGE THAT A PARTY HAS LIED TO OTHER PARTY 10. CONTROLLING THE OFFER STREAM? 11. PARTY THREATS OF CRIMINAL CONDUCT 12. PARTY PRESENT AND CONTINUING CRIMINAL CONDUCT

SOME ETHICAL ISSUES (cont’d) 13. PAST, UNDISCOVERED CRIMINAL CONDUCT 14. PARTY POSSESSION OF WEAPON 15. GIVING PRIVATE LEGAL ADVICE TO A PARTY, TO FURTHER SETTLEMENT PROCESS 16. GIVING PRIVATE LEGAL ADVICE TO A PARTY ON LITIGATION STRATEGY 17. GIVING LEGAL ADVICE TO PARTIES JOINTLY 18. PRIVATE CALLS FROM PARTY WHO IS REPRESENTED BY COUNSEL

SOME ETHICAL ISSUES (cont’d) 13. PAST, UNDISCOVERED CRIMINAL CONDUCT 14. PARTY POSSESSION OF WEAPON 15. GIVING PRIVATE LEGAL ADVICE TO A PARTY, TO FURTHER SETTLEMENT PROCESS 16. GIVING PRIVATE LEGAL ADVICE TO A PARTY ON LITIGATION STRATEGY 17. GIVING LEGAL ADVICE TO PARTIES JOINTLY 18. PRIVATE CALLS FROM PARTY WHO IS REPRESENTED BY COUNSEL

SOME ETHICAL ISSUES (cont’d) 19. SUBPOENA CONCERNING MEDIATION; BY PARTY TO MEDIATION; BY BOTH PARTIES TO MEDIATION; BY THIRD PARTY 20. LEARN OF CHILD OR SPOUSAL ABUSE 21. HELP THE WEAKER ADVOCATE? 22. HELP THE WEAKER PARTY? 23. KNOWLEDGE THAT PARTIES ARE NOT CONSIDERING EVERYTHING THAT WILL AFFECT THEM IN THEIR SETTLEMENT

SOME ETHICAL ISSUES (cont’d) 19. SUBPOENA CONCERNING MEDIATION; BY PARTY TO MEDIATION; BY BOTH PARTIES TO MEDIATION; BY THIRD PARTY 20. LEARN OF CHILD OR SPOUSAL ABUSE 21. HELP THE WEAKER ADVOCATE? 22. HELP THE WEAKER PARTY? 23. KNOWLEDGE THAT PARTIES ARE NOT CONSIDERING EVERYTHING THAT WILL AFFECT THEM IN THEIR SETTLEMENT

SOME ETHICAL ISSUES (cont’d) 24. LEGAL ADVICE TO PARTIES TO HELP THEM EFFECT THEIR SETTLEMENT AGREEMENT? 25. TELL THE PARTIES THE PROCEDURAL ROPES, THE SCOOP ON A JUDGE? 26. FOREGO OPENING AND JOINT SESSION, AND GO STRAIGHT TO CAUCUS AS A RESULT OF: TIME PRESSURE; PARTY PRESSURE? 27. SHIFT FROM MEDIATING FOR UNREPRESENTED PARTIES TO REPRESENTING THEM

SOME ETHICAL ISSUES (cont’d) 24. LEGAL ADVICE TO PARTIES TO HELP THEM EFFECT THEIR SETTLEMENT AGREEMENT? 25. TELL THE PARTIES THE PROCEDURAL ROPES, THE SCOOP ON A JUDGE? 26. FOREGO OPENING AND JOINT SESSION, AND GO STRAIGHT TO CAUCUS AS A RESULT OF: TIME PRESSURE; PARTY PRESSURE? 27. SHIFT FROM MEDIATING FOR UNREPRESENTED PARTIES TO REPRESENTING THEM

SOME ETHICAL ISSUES (cont’d) 28. REPRESENT A PARTY TO A MEDIATION IN: THE SAME MATTER; A SUBSEQUENT UNRELATED MATTER AGAINST THE OTHER PARTY; A SUBSEQUENT UNRELATED MATTER AGAINST A NONPARTY? 29. REPRESENT A NON-PARTY IN A SUBSEQUENT MATTER AGAINST A PARTY TO THE MEDIATION? 30. SPLIT A MEDIATION FEE WITH A NON-ATTORNEY CO- MEDIATOR? 31. TERMINATION OF THE MEDIATOR BY THE ONE OR MORE OF PARTIES

SOME ETHICAL ISSUES (cont’d) 28. REPRESENT A PARTY TO A MEDIATION IN: THE SAME MATTER; A SUBSEQUENT UNRELATED MATTER AGAINST THE OTHER PARTY; A SUBSEQUENT UNRELATED MATTER AGAINST A NONPARTY? 29. REPRESENT A NON-PARTY IN A SUBSEQUENT MATTER AGAINST A PARTY TO THE MEDIATION? 30. SPLIT A MEDIATION FEE WITH A NON-ATTORNEY CO- MEDIATOR? 31. TERMINATION OF THE MEDIATOR BY THE ONE OR MORE OF PARTIES

SOME ETHICAL ISSUES (cont’d) 32. ROMANTIC INVOLVEMENT WITH A PARTY; COUNSEL 33. GIVING REALITY FEEDBACK ON SUBJECT OF WHICH YOU ARE IGNORANT 34. GIVING LEGAL FEEDBACK ON SUBJECT OF WHICH YOU ARE IGNORANT 35. TELLING ONE PARTY SOMETHING LEARNED FROM OTHER PARTY IN CONFIDENCE 36. SUGGESTING RESOLUTION

SOME ETHICAL ISSUES (cont’d) 32. ROMANTIC INVOLVEMENT WITH A PARTY; COUNSEL 33. GIVING REALITY FEEDBACK ON SUBJECT OF WHICH YOU ARE IGNORANT 34. GIVING LEGAL FEEDBACK ON SUBJECT OF WHICH YOU ARE IGNORANT 35. TELLING ONE PARTY SOMETHING LEARNED FROM OTHER PARTY IN CONFIDENCE 36. SUGGESTING RESOLUTION

SOME ETHICAL ISSUES (cont’d) 37. PARTY BACKS OUT OF OFFER; DENIES MAKING OFFER THAT YOU KNOW WAS MADE 38. PRESSURE FROM COURT (purely hypothetical): TO SETTLE; FOR INFORMATION Ethical Issues Derived in part from Institute for Conflict Management, Inc. training materials; and from Robert A. Baruch, Ethical Dilemmas, In Golann, D. (1996). Mediating Legal Disputes: Effective Strategies for Lawyers and Mediators. Aspen Law and Buisness.

SOME ETHICAL ISSUES (cont’d) 37. PARTY BACKS OUT OF OFFER; DENIES MAKING OFFER THAT YOU KNOW WAS MADE 38. PRESSURE FROM COURT (purely hypothetical): TO SETTLE; FOR INFORMATION Ethical Issues Derived in part from Institute for Conflict Management, Inc. training materials; and from Robert A. Baruch, Ethical Dilemmas, In Golann, D. (1996). Mediating Legal Disputes: Effective Strategies for Lawyers and Mediators. Aspen Law and Buisness.

The parties ask the mediator for her legal opinion on the issues raised by the case. l How should the mediator respond?

A mediator learns that a company has been committing tax fraud by knowingly charging personal expenses to his company. l Does the mediator have a duty to take any particular action? l What are the ethical duties of the mediator under these circumstances?

Lying l By Counsel? – Fact? – Law? l By Party? l How do we handle this?

Zealous Advocacy l Substitution of Norms of Diligence & Competence l The New Lawyer – The Collaborative Practice Model

The parties have reached an impasse. The parties ask the mediator to change hats and serve as arbitrator. l How l What should the mediator respond? should be the response in the converse situation where the neutral was initially engaged as an arbitrator and after the first day of the hearing the arbitrator was asked to suspend the arbitration and instead serve as a mediator?

Years ago the mediator and the claimant’s counsel opposed each other in a forgettable litigation. It was so forgettable that the mediator forgot the particulars except to recall that it was approximately 10 years ago. l Is a disclosure necessary? l If so, what needs to be said? l What effort, if any should be made to recover what has been forgotten? l Is the answer different if the litigation in question took place last year?

You are a litigator who occasionally serves as a mediator. Your newest mediation pits two large financial institutions against each other. Your spouse works for a major law firm in town. You believe your spouse’s firm represents one of the parties on a regular basis, but you do not believe your spouse has ever represented that party. l What should you do?

You are a mediator with a private legal practice. During a caucus, the General Counsel for one of the parties indicates, in a one-on-one conversation with you, that she is always looking for good lawyers and to give her a call after the mediation to discuss possible opportunities. l What should you do?

Conflict of Interest?

In an introductory caucus, claimant’s counsel threatens to disclose in the context of mediation the marital infidelities, addictions, and sexual predilections of several respondent’s senior executives. l What should the mediator do in response, if anything?

An unsophisticated party, with unsophisticated counsel, is inclined to accept an offer based on a misunderstanding of the underlying legal principles that severely undervalues that party’s case. l Does the mediator have any obligation ethical or otherwise - to educate that party?

Pro Se “I don’t mind your acting as your own attorney, but would you please stop hopping on and off that damned chair? ”