by Sandra Hedrick
Mediation is more than reaching a settlement. Mediation promotes public confidence in the justice system, which contributes to the stability of society. These benefits are fully realized when the mediator and attorneys honor fundamental principles of professionalism in mediation.
In mediation, an impartial third person encourages and facilitates resolution of a dispute without prescribing what it should be. Fundamental mediation principles include (1) impartiality; (2) confidentiality; and (3) self-determination.
An impartial person is essential to the mediation process. The parties are often angry and frustrated with “the system.” At mediation they can talk to a neutral professional who can restore a sense of fairness. The mediator can inject realism and make creative suggestions that lead to a solution.
Before accepting an assignment, the mediator must check for any potential conflict of interest. Fla. R. Civ. P. 10.340. “A conflict of interest arises when any relationship between the mediator and the mediation participants or the subject matter of the dispute compromises or appears to compromise the mediator’s impartiality.” Id. at 10.340(a). Examples of potential conflicts include: current or past client or adversarial relationships, financial interests, personal knowledge of the disputed facts, close friendships, family relationships, etc. A potential conflict should be disclosed. “The mediator may serve if all parties agree,” but not if the conflict clearly impairs his or her impartiality. Id. at 10.340(c).
The mediator must maintain a neutral demeanor. The parties should not develop the impression that the mediator is siding with one party or has a personal opinion about how the case should be decided. On the other hand, the mediator may provide “information that the mediator is qualified by training or experience to provide.” Fla. R. Civ. P. 10.370(a). In essence, a mediator may point out “possible outcomes of the case and discuss the merits of a claim or defense.” Fla. R. Civ. P. 10.370(c). However, he or she shall not offer a “personal or professional opinion intended to coerce the parties, decide the dispute, or direct a resolution of any issue.”
Mediation is confidential. Confidentiality allows parties to speak candidly without fear that statements and negotiating positions will be used against them. Failure to maintain confidentiality could lead to dismissal of the case or a default judgment against a misbehaving defendant.
Mediation remains confidential after conclusion. “If the parties do not reach an agreement, the mediator shall report the lack of an agreement to the court without comment or recommendation.” Fla. R. Civ. P. 1.730(a). Only with the consent of the parties may the mediator identify “any pending motions or outstanding legal issues, discovery process, or other action by any party which, if resolved or completed, would facilitate the possibility of a settlement.” Id. A party may expect that the other party will not report to the trial judge what happened at the mediation. Enterprise Leasing Co. v. Jones, 789 So. 2d 964 (Fla. 2001). If agreement is reached, the mediator reports the resolution without comment. 1.730(b), Fla. R. Civ. P.; Middle District Local Rule 9.06(a).
A mediator may not advise the court that he or she learned in confidence in private caucus that a participant did not have required settlement authority. Mediator Ethics Advisory Committee Opinion 99-002. The rules as to when a mediator should advise the court of the failure to participate with settlement authority are complex, and the mediator should carefully review them. In addition, under Florida law, a mediator may not report that a party did not negotiate “in good faith” or the reasons mediation was cancelled or postponed. Mediator Ethics Advisory Committee Opinions 2001-004 and 2000-003. Similarly, Rule 9.07 of the Middle District Rules provides that “[a]ll proceedings of the mediation conference . . . are privileged in all respects. The proceedings may not be reported . . . to the trial court or jury, or construed for any purpose as an admission against interest.” Any potential exceptions could only relate to high policy interests (e.g., crimes, abuse, etc.) or professional discipline.
In mediation, the parties decide how the case will end. The resolution may include terms (such as that elusive “apology”) a party cannot obtain in court. Most parties find self-determination appealing and satisfying.
A mediator helps the parties make informed decisions, but cannot coerce a decision or even continue the mediation if a party is unable to freely exercise self determination. Fla. R. Civ. P. 10.310(d). A mediation should be adjourned/terminated: (1) upon agreement; (2) mediation would result in unreasonable emotional or monetary costs; (3) the case is unsuitable for mediation; (4) a party is unwilling to participate meaningfully; (4) the mediation entails fraud, duress, the absence of bargaining ability, or unconscionability; and/or (6) physical safety is endangered. Fla. R. Civ. P. 10.420(b).
Many lawyers acknowledge that they like the mediator to “twist both parties’ arms.” However, parties have the absolute right not to settle. Mediation must not sacrifice “the quality of justice to be rendered or the right of the litigants to a full trial in the event of an impasse following mediation.” Local Rule 9.01(b).
Other Ethical Issues For Lawyers and Mediators
Because mediation involves negotiation, parties frequently bluff about bottom line, case strength, real or pretended anger, and other similar matters. Nevertheless, skilled negotiation has its limits. “As an advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system. As a negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others.” Preamble, Fla. Bar Rule 4. Attorneys shall not knowingly “(a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by rule 4-1.6.” Fla. Bar Rule 4-4.1.
A lawyer “is required to be truthful when dealing with others on a client’s behalf, but generally has no affirmative duty to inform an opposing party of relevant facts. A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false. Misrepresentations can also occur by failure to act.” Comment, Fla. Bar Rule 4-4.1. Thus, “[u]nder generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact. Estimates of price or value placed on the subject of a transaction and a party’s intentions as to an acceptable settlement of a claim are in this category, and so is the existence of an undisclosed principal except where nondisclosure of the principal would constitute fraud.” Id. Likewise, a mediator “shall not intentionally or knowingly misrepresent a “material fact or circumstance” at mediation. Fla. R. Civ. P. 10.310(c).
In summary, mediation is a neutral, confidential and ethical process of self-determination. Supreme Court Justice Potter Stewart once said, “Fairness is what justice really is.” For mediation, the perception of fairness leads litigants to believe in justice, satisfaction with the system, and respect for the law. As such, mediation is not “alternative” dispute resolution. Instead, mediation is an integral part of the judicial system.