You’ve
probably seen it yourself. For
reasons only they can imagine, “real people, not actors” decide to
try their case to a television “judge.”
They stand in front of the bench, a television studio audience
smirking behind them, while the hot camera lights lay bare their little
turmoil of competing claims and defenses for all-the-world to see.
They wage a mighty, energetic battle to move the fickle opinions
of judge and tv “jury” their way and to crush
their opponent. We might marvel,
when it is all done, how one or the other of these poor souls (or
perhaps both of them) could really have thought their stories were
so compelling. This is “reality television” at its finest.
This
is the reality litigants sometimes carry with them into their real
life lawsuits and, unfortunately, into the mediation process as well: it is all about winning, and winning requires
one to ignore the big picture and find the right spin. And as always in this contentious, fractious
world, winning seems to require one’s opponent to lose.
As
will be seen here, an understanding of the rules and roles of mediation
and mediators allows participants the chance to achieve a different
kind of victory in their lawsuit, a “win” without losers.
To reap maximum advantage from the mediation process, however,
both the litigants and their lawyers must appreciate the ethical code
that defines the process and binds and motivates the mediator.
In
the 1980s and 1990s the volume of civil cases was on the rise, and
so was the time lag between case filing and trial setting.
After extensive studies in Minnesota and elsewhere, a joint task force, appointed
by the Minnesota Supreme Court in 1990, made recommendations for alternative
dispute resolution (ADR) in civil cases. In 1993 the Court adopted Rule 114 of the General
Rules of Practice to describe the various options available and set
the rules for participants. Then,
in 1997, pursuant to recommendations of an advisory task force, the
Court also adopted the Appendix to the Rule, the neutrals’ Code of
Ethics. Rule 114 describes and governs all forms of
adr, but the scope here is limited to the “facilitative” format
only, mediation.
The
Rule and the Appendix together set forth the four foundational concepts
underpinning mediation:
Unless
the litigants understand the mediator’s focus and ethical constraints
embodied in these concepts, they will have no chance of taking full
advantage of this common ADR process.
Self-Determination
“I don’t know as I want a lawyer to tell
me what I cannot do.
I hire him to tell me how to do what I want
to do.”
—J. P. Morgan
The
Appendix to Rule 114 of the General Rules of Practice for the District
Courts emphasizes the principle of self-determination in a most elegant
way: the only rule under the subhead Mediation (Rule
I) is entitled “self-determination.”
Voluntary, party-driven decision making is mediation’s central
premise:
A
mediator shall recognize that mediation is based on the principle
of
self-determination by the parties.
It requires that the mediation process
rely upon the ability of the parties to reach a voluntary, uncoerced agreement.
The primary responsibility for the resolution of a dispute
and the shaping
of a settlement agreement rests with the parties. A mediator shall not require
a party to stay in the mediation against the party’s will.1
Rule
114.02(a)(7) reinforces the concept by defining mediation as a process
in which the neutral “facilitates communication” and “may not impose
his or her own judgment on the issues … .”
Ironically,
it is this central principle that most confounds the parties and often
protracts the process. The
public’s concept of litigation seems to require that a higher authority
make the decision. We have a tendency to leave to our elected officials
the very important public decisions that affect us all. And we Americans, far more than others, want
judges to decide our private disputes as well. As a consequence of
this inclination, parties often come to mediation expecting someone
else to rule on their case.
Trial
lawyers are often similarly inclined, but for different reasons. All of the lawyer’s training, and much of his
professional energy, focus on winning the battle of the courtroom. We study the Rules of Evidence and the Rules
of Civil Procedure to make the most of our tactical and strategic
positions as advocates on behalf of our clients.
We research and draft jury instructions for maximum advantage.
And clearly we know that only one side can win at trial (and it better
be ours).
But
it is the mediator’s ethical dictate that must govern the process
of mediation. Parties entering mediation without a full appreciation
of the self-determinative principle act pursuant to the logic of winning.
They will do everything possible to convince the mediator (and
sometimes even their own lawyer) of the righteousness of their position
and the truth of their cause. As an advocate, the attorney will always be
looking for ways to build the case, encourage the client, and try
out winning theories and strategies.
In these efforts to persuade the mediator they may even convince
themselves.
Unfortunately,
while so focused upon convincing the neutral and thereby “winning,”
parties may find it hard to listen to insights and questions that
will allow them to understand how they can lose.
The mediator’s “facilitative” role2 requires the mediator to
challenge and confront each of the litigants with (or at least to
allow assessment of) the risk of loss. Only with a full appreciation of risk can a
party reach informed “self-determination” via mediation.
Your
client, no matter how sophisticated, needs to be prepared to hear
in mediation about all of the liability facts, expert opinions, jury
instructions, and other evaluative criteria that, if the case were
tried, would defeat the client’s claims or defenses.
If the client understands upon entering the process that she,
not the mediator, will be making the settlement decisions, the client
will be able to fully hear and analyze these issues and utilize the
insights of the mediator rather than trying to sway him, and thereby
to take full advantage of the process.
If
a party needs to hear about the issues in mediation, one would assume
that attendance would be required.
And so it is, “unless otherwise directed by the court.”3 Perhaps no other rule has caused so much
dissension and confusion. Attorneys
often seek permission of the mediator to allow decision makers to
be absent, or to be available by phone.
Occasionally, there are valid reasons for the request.
But the rule requires the court’s permission, not the mediator’s;
and if self-determination is the essence of the process, all decision
makers should expect to be present.
Impartiality,
Conflicts and Diligence
“The recipe is more important than the cake.”
(Why the mediator must allow the parties to conclude
the process without a settlement.) —Justice
Helen Meyer
Although we as lawyers like to assume that fairness,
impartiality, and diligence are always our guiding principles, rarely
do we find the rules so overtly demanding:
In
order for ADR to be effective, there must be broad public confidence
in the integrity and fairness of the process.
Neutrals have a responsibility not
only to the parties and to the court, but also to the continuing improvement
of ADR processes. 4
As
it turns out, impartiality is more than an ideal in mediation. It is, instead, a very practical necessity:
if for any reason the parties or attorneys sense that there
is any element of favoritism or unfairness in the mediation, the process
simply will not work. The parties
will resist full exposure of the strengths and weaknesses of their
positions if they fear that by doing so they will impair their option
to try the case. They will
certainly cease to reevaluate their settlement postures if they sense
that the mediator has unfairly failed or refused to acknowledge the
merits of their positions.
Rule
I of the Code of Ethics found in the Appendix to Rule 114 requires
the neutral to conduct the process impartially, and to withdraw if
that becomes impossible. Rule
V mandates a “quality process,” which, in turn, “requires a commitment
by the neutral to diligence and procedural fairness.”
The rule prohibits the neutral from knowingly making false
statements of fact or law and requires all reasonable efforts to expedite
the process.
There
is more to it than that, however.
Experienced mediators understand that as intermediaries they
are in a position of power and influence.
They hear the private accounts of all sides of the dispute,
and by virtue of their assurances to the parties of confidentiality
(see below) they will have private information from each side that
may easily drive strategy and evaluation of the case. They are ethically bound, therefore, to avoid
the danger of favoring one party over the other. There are several risks to avoid. The mediator cannot make rash predictions about
outcomes, and should conscientiously maintain a discreet and even
hand in rendering opinions. The
mediator, obviously, must refrain from making false statements; but
she must also be candid about opinions and personal observations,
as well. The mediator will often try to push the parties
toward settlement; she may even suggest the terms of settlement, but
may not control them.
By
virtue of our own Rules of Professional Conduct, we lawyers pay special
heed to conflicts of interest. Rules
1.7, 1.8 and 1.9 pertain, respectively, to those situations in which
the interests of one client directly or materially conflict with those
of another; our client’s interests may conflict with our own; and
our present client’s interests conflict with the interests of a former
client. Depending upon the
nature of the matter and the conflict, the lawyer may be unable to
represent a party or unable to enter into a transaction, or he may
simply have to disclose the circumstances and allow the client the
opportunity to consent to representation.
The
Code of Ethics for neutrals compels disclosure of “actual and potential
conflicts of interest” so as to allow the parties to make informed
choices to retain the neutral.5 As with Rule
I (“impartiality”) and Rule V (“quality process” and “procedural fairness”)
the disclosure of conflicts is designed to weave integrity into the
fabric of the process. The
parties and lawyers must find comfort in the fabric for the process
to have any chance of succeeding.
As
noted above, Rule 114 and the Appendix to the Rule define and govern
both facilitative and adjudicative ADR processes.6
However, the implications for fairness and especially
conflicts of interest vary widely between the two: a neutral may well
be able to mediate a case involving a former client that she could
never arbitrate.
Finally,
ex parte discussions
with the neutral are forbidden in adjudicative processes, but are
virtually essential to the facilitative process of mediation.7 The parties and lawyers may need to adjust
their expectations for fairness accordingly.
Competence
and Reasonable Expectations
Although Rule III of the Code of Ethics in the Appendix to Rule
114 is entitled “Competence,” the rule itself requires merely that
the neutral must have “the necessary qualifications to satisfy the
reasonable expectations of the parties.”
Minn. Stat. §572.37 requires anyone acting as a mediator pursuant
to the Civil Mediation Act to provide to the parties a written statement
of the mediator’s qualifications. The statute mandates disclosure of “educational
background and relevant training and experience in the field.”
Thus, assuming the mediator sends to the parties a copy of
his or her resume, as required by the statute, what must be the “reasonable
expectations of the parties”? More to the point, what is the “field” in which
the mediator should be expected to have “relevant training and experience”?
Should it be the field of mediation or the field of law involved
in the case, e.g., personal injury, employment, or intellectual property?
Considering
the disclosure statute and the “reasonable expectations” ethical rule
in tandem, it would seem that the mediator and the attorneys for the
mediating parties share responsibility for selecting the right neutral
for the job. At a minimum, the mediator must possess mediation
skills. But unless the parties describe the conflict to the mediator,
he may not know enough about the dispute in advance of the session
to assess substantive competence.
The parties may need to review the mediator’s resume, check
references, or conduct an informational interview.
Regardless of the investigative methods used, your client needs
to know who the mediator is and why he has been selected to serve.
Confidentiality
“We never knows wot’s
hidden in each other’s hearts; and
if we had glass winders there, we’d need keep the shutters up,
some on us, I do assure you.” —Charles
Dickens, Martin Chuzzlewit
Mediation
means keeping secrets — from the opposition, from the jury, even from
the judge. And unless the parties come into the process
with that understanding, it will not work to full advantage.
Rule
IV of the mediator’s Code of Ethics requires “confidentiality to the
extent provided by Rule 114.08 and114.10 … .” Those rules, in turn, proscribe several types
of disclosure:
If the case is not settled and it goes to
trial, the jury will never hear that it was the subject of mediation
and will never know that the parties made offers and demands for settlement. The opposing party will not receive any information
or documents produced at mediation (unless it is otherwise discoverable). Neither party can obtain or subpoena the mediator’s
file or impressions. And the mediator will not discuss with the judge
either the issues or the settlement postures of the parties.
It
is hard for most of us to shake the notion that justice requires fresh
air to thrive. We are justifiably suspicious of private political
deals made in smoke-filled back rooms, and we have “open meeting”
laws and open courtrooms to protect us all against secrecy. Yet, when it comes to private resolution of
private disputes, parties need to know that their deliberations are
strictly secret, and that the mediator will keep those secrets. It is the mediator’s job to help the parties
to end their battle; in doing so he cannot risk disclosures that would
tip the battlefield one way or the other.
The parties need to know that.
By
the time most cases reach mediation the parties have given up most
of their factual secrets to Rule 26 discovery, though they may retain
a few strategic surprises. Only with the assurance that their private assessment
of both facts and strategies will remain secret will the first principle
of mediation, informed self-determination, succeed.
And
so we’re back to self-determination, and the circle is complete: it is not just the right to make the decision
that is important, but the risk-free
opportunity to assess risk. That
opportunity is created in a mediation environment where the litigant
understands the choice is hers; where she is willing to discuss openly
the ways she can lose; where she knows the mediator is competent and
even-handed; and where, regardless of whether she settles the case,
her secrets are kept.
NOTES:
1 Rule 114, General
Rules of Practice for the District Courts (hereinafter “Rule 114”).
Appendix, Mediation, Rule I.
2
Rule 114.02 (a)(7).
3
Rule 114.07 (c).
4
Rule 114, Appendix, Introduction.
5
Rule 114, Appendix, Code of Ethics, Rule II.
6
Rule 114.02 (a)(1) and (7)
7
Rule 114.10.
8
Rule 114.08 (a).
9
Rule 114.08 (b).
10
Rule 114.08 (e).
11
Rule 114.10.
Practice
Tip #1: Before the mediation
process begins, educate the client, claims person and other decision
makers that they, not the mediator, will be making the ultimate decisions
about settlement, and that, therefore, the focus of the mediation
will be to prepare them to assess the risks inherent in trial.
Practice
Tip #2: Consider very carefully
any conflict disclosures, and demand and expect your mediation to
provide for procedural fairness.
Practice
Tip #3:
Investigate to make sure the mediator is the right neutral
for your case, then make sure your client
is fully informed about the mediator’s credentials.
J.
MARK CATRON serves as a mediator in about 200 cases annually,
involving personal injury disability, commercial and insurance issues.
He has been a trial lawyer for 29 years.
