New Georgia Ethics Opinion Results in First Ever “De-Registration” of Mediator

As I have mentioned in the past, the Georgia Office of Dispute Resolution (GODR) oversees the court-referred mediation programs in the State of Georgia.  Georgia has minimum training and professional experience requirements for mediators that wish to accept court-referred cases.  They also have an Ethics Committee that reviews complaints against mediators.

Yesterday, I received an email alert from the GODR regarding a recent ethics opinion, only the third ever to be issued.  It is a particularly troubling case due to the numerous and egregious lapses in judgment made by this particular mediator.

In summary, the mediator, who was also a licensed psychologist, was referred a couple in need of counseling through a church program for troubled marriages.  After meeting with them jointly and individually in a vague and undefined capacity, he offered them a choice: continue marriage counseling with him or allow him to mediate their divorce.  This was the first mistake.

After the couple chose to have him mediate, but before the mediation occurred, the wife/mother requested that the mediator conduct psychological testing on her son for some educational problems.  The mediator agreed. Mistake number two.

Sometime later, the couple participated in two mediations, after which the husband/father terminated the mediation relationship and filed a complaint against the mediator. The husband/father alleged that the mediator was biased against him and pointed to several statements made by the mediator during the mediation, the educational testing performed by the mediator on behalf of the mother, as well as the fact that mediator allegedly “spent an extra hour counseling his wife alone after the second mediation session ended.”  The mediator claimed the “extra hour” was simply a caucus and part of his policy to give “equal time” to the parties.  He also claimed that the alleged bias was part of his technique to help diffuse tension and I guess, reality test.  The explanations he provided seem like ex post facto excuses, but not clearly “red flag” mistakes or ethical violations.

After the mediation relationship was terminated, the wife/mother asked the mediator to continue counseling her children for educational and behavioral issues, and he met with both of her children several times.  Mistake number three.

But we still haven’t reached the piece de resistance.

Sometime after the counseling session, the wife/mother filed a motion in conjunction with the divorce proceeding and for whatever reason, the mediator was called to testify.  rather than refuse to testify, as spelled out in his own Guidelines for Mediation and the ADR Rules, the mediator willingly testified about “how he came to mediate for the couple and the result of the mediation.”  While the Ethics Committee found that these “matters in themselves are not confidential in a court-connected mediation,” they also found

no evidence that he refused to testify or fought to quash a subpoena.  There was no evidence that he sought a waiver of confidentiality from the family. Respondent did voluntarily what he could not be required to do under the rules.

Mistake number four.

Even the judge recognized this mediator’s suspect ethics and wrote in an Order that he

“found [Respondent’s] testimony and involvement with the parties in this case questionable at best.”

Then, in the bonehead move to top all bonehead moves, the mediator responded to the Court’s written opinion challenging the mediator’s professional integrity by filing an eight page affidavit, in which the mediator

described [the husband's] disruptive and uncooperative behavior during the mediation and quoted angry and insulting statements [the husband] made in joint session, as well as in caucus.

In his defense, the mediator claimed that the court needed to know “the true reason for the failed mediation,” and that he “sought only to clear [his] name.”  Mistake number five, six, seven . . .

The Ethics Committee Opinion reads like a laundry list of “What Not to Do As A Mediator”.    Of the major issues, the Committee found that the mediator violated the Ethical Standard for Mediators by serving the family in three different professional roles within three months’ time – counselor, mediator, educational consultant.

The Committee also found that the mediator’s act of

testifying voluntarily in open court about the mediation and [Mediator's] voluntary submission to the court of an affidavit detailing [the husband's] behavior and words in the mediation constituted multiple violations of the confidentiality rules.

But then, of course, you already knew this because you have common sense. The Ethics Committee felt that this man committed such egregious errors that they removed his name from the roster of approved mediators. Apparently, the first time that penalty has ever been invoked.

My only issue with the Committee is that the Opinion does not name the mediator.  I believe this is a mistake. Ineptitude of this magnitude should be exposed.  While he can no longer accept court-referred cases, he is allowed to continue working with private parties.  In order for the marketplace to function properly, information such as this should be shared or made available to all potential consumers.  And if I knew who he was, I’d expose him in a heartbeat.

More Divorcing Couples Utilize ADR.

A recent survey of Certified Divorce Financial Analysts (CDFA) indicates that a vast majority of those polled stating that the number of clients unable to continue to afford their services in this economy has increased since the previous year.   They further commented that this will result in more clients seeking a more cost-effective alternative to litigation, such as collaborative divorce and mediation.

I only recently became involved in domestic mediation, and I cannot specifically ascribe any increase in the frequency of my domestic mediations to the economy, but this makes sense to me.  Couples who generally see eye-to-eye but have some disputes over a few assets or maybe visitation and custody issues, are not well served by the adversarial process.  Litigation tends to escalate matters, driving up costs and delaying the finality of the divorce.

Hat tip to NJ Lawyer and mediator Donald Vanarelli.

Why mediation works.

I came across this interesting quote the other day:

We are generally the better persuaded by the reasons we discover ourselves than by those given to us by others.
- Blaise Pascal

I think this effectively illustrates why mediation works. As I discussed before,

[Mediation] provides the litigants their last and best opportunity to take control of the outcome of their dispute. ADR professionals will tell you that it provides litigants with a sense of autonomy, empowerment, or control; that mediation is all about self-determination. The parties agree to a solution because they become involved in the process.

An effective mediator, even an evaluative mediator, is one who can help the parties assess the perceived strengths and weaknesses of their positions, examine their needs and interests, and discuss settlement options by asking the right questions.   When parties are asked their opinions, when they are asked to present options, when they are forced to confront issues head on and look objectively at potential outcomes, when an agreement is reached, they come to believe that they reached the solution themselves.