Who and What Do You Know? Conflict and Disclosure in Mediation
Credit: @dnnsbrndl
Mediators are the professionals who are always caught in the middle of huge battles that they personally have nothing to do with. However, they still come under fire and get accused of taking another party’s side, among other things from time to time—usually when a party doesn’t understand mediation or what the mediator’s goal is. However, that doesn’t mean that the mediator doesn’t sometimes encounter situations where they may have some personal knowledge of the parties, facts, or some involvement with a particular party and have to address that.
There are several sources of ethics rules, court rules, and so on that govern mediation. While the rules surrounding conflict of interest are a little relaxed as compared to attorney rules on this topic, the nature of acting as a mediator who helps the parties collectively to achieve a common goal is different from an attorney, who is supposed to represent one party’s interests. Judges are also held to a very high standard with this, as they are actually making final decisions regarding the parties and topics, among other aspects! Nonetheless, mediators must always keep personal biases and conflicts in check.
Generally, mediators and other legal professionals should never agree to take on work in which they feel a conflict of interest or bias that could affect their ability to be impartial when engaging with parties to mediation. Some of the things mediators should disclose according to the California Rules of Court are “past, present, and currently expected interests, relationships, and affiliations of a personal, professional, or financial nature.”
Simply because such a relationship exists does not mean that mediation cannot or should not continue. If the mediator discloses the relevant relationship, interest, etc. and all parties consent, the mediation can move forward, except where the mediator feels they cannot be completely impartial towards one or more parties, or the integrity of the mediation would otherwise be negatively impacted. In this scenario a mediator must recuse themselves.
It is highly important for mediators not to get sloppy with conflicts. While there are some more obvious conflicts, like knowing a party personally, having involvement with a company involved in mediation, etc. These types of cases I would advise mediators to approach from an abundance of precaution. However, there are some things that, while mediators may not consider a serious threat to the mediation process for them as a professional, it could be something that a party reacts horribly to, if they find out later.
This is common in situations where the mediator may have had mediation with one party’s attorney at some point in the past, or know them from somewhere. It is not at all uncommon for mediators and attorneys to bump into each other in these settings, at local events for legal professionals or in networking, and be able to maintain a professional relationship in a mediation or courtroom setting. That being said, just because people who are in the legal profession recognize that this is generally not inappropriate behavior, parties to mediation who already often have extreme distrust of the other party can quickly displace that mistrust in your direction if you do not address any possibility of there being an issue upfront.
It doesn’t come up often for me, but I always disclose, even if it is not a big deal. Not only is it the right way to do things from an ethical standpoint, it’s also the safer way for you to conduct yourself and avoid any potential for unnecessary issues. Not only that, telling parties information like this is the best way to present yourself to them and establish trust. If any of the parties decide not to participate based on what you’ve disclosed, then consider it a blessing to avoid any potential for problems in your business or your reputation and go help the next parties!