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.

Wherein I Stopped Being A Mediator and Started Being a Businessman.

Quite plainly afraid of confrontation, he always calls in the 7:00 hour, morning or night, wholly unaware that my office line rolls to my cell.  Like the other conversations, it beings with the exhortation that he is trying to pay me and isn’t avoiding me.  At first, I took a soft, conciliatory, mediator-like  approach.  I listened.  I understood his problems.  I told him I was willing to “work with him.”  I foolishly reduced the amount he owed by about 30%.  I gave him until his next paycheck.

Weeks passed.  No checks in my mailbox.

This call was more of the same.  This time I had had enough.

“Times are hard,” he said.  Times are hard all over, I replied.

“Can you work with me?” he queried.  No, I’ve already “worked” with you, I told him firmly.

“I’m not not trying to pay you,” he exclaimed quite dubiously.  No, I said, your failure to pay me for over 6 weeks now shows me that you really aren’t trying to pay me at all, I sternly replied.   If I don’t receive payment, in full, in the next X days, I’m off to Small Claims Court to file suit.  And I will ask for far more than the fee I offered to accept as a compromise, including my attorney’s fees, court costs and interest.

And so it goes.  I really don’t expect to be paid.  I will absolutely file suit, but I don’t expect him to show up.  I will take a default, but I will likely find it hard to collect.  I take it as a hazard of working court-referred cases.  While I’ve never had a client with an attorney fail to pay and I’ve even had some attorneys pay when their clients haven’t,  I guess I shouldn’t expect much from pro se parties being sued for unpaid credit card bills or held in contempt for unpaid child support.

Some Link Love – The Strategic Mediator.

Diane Levin recently linked to a new mediation blog – The Strategic Mediator.  Written by the Florida based mediation panel of Upchurch Watson White & Max, it is a welcome addition to my Google Reader.

What, exactly, is a Kumbaya Singing Mediator?

Seriously?  I recently found myself telling someone that “I’m not a mediator that wants everyone to sing ‘Kumbaya’”.  Having never actually sung “Kumbaya,” I realized that I am not sure I know exactly what that means.  I simply picked up on the term from an article that Geoff cited.   I actually had to Google it.

And I learned that Kumbaya is apparently one of the most annoying and repetitive songs since “Row Row Row Your Boat”, so  I can see why you don’t want to be known as a Kumbaya Singing Mediator.  On the other hand, the annoying repetitive nature of the song might be effective at putting your parties in a suggestible trance-like state.

Fordham Law Symposium – “Against Settlement”: 25 Years Later.

One of the worst things about being 900 miles from my law school alma mater is that I typically cannot attend the excellent events they hold.   Case-in-point:  Against Settlement: Twenty-Five Years Later. The Fordham Law Review has assembled an impressive roster of well-known professionals from the ADR, complex litigation, and public interest communities to discuss the role of settlement and adjudication in civil litigation, including Owen Fiss, the author of the seminal article Against Settlement, Kenneth Feinberg, and Michael Moffit of ADR Prof Blog, as well as distinguished members of the Fordham faculty and family.

If Lawyers Dump the Billable Hour, Are Mediators Far Behind?

Evan R. Chesler, presiding partner at Cravath, Swaine & Moore in New York, recently called for firms to “get rid of the billable hour.”  There have been other similar calls , one notably by noted lawyer/Hollywood author Scott Turow, as well as other obituaries about the death of the billable hour.

If this catches on, can ADR practitioners be far behind?  Should we be looking for alternative billing arrangements? What would they look like?  Plaintiff lawyers have long assumes the risk of a case for a percentage of the outcome, but this would be unethical for a mediator.

Some insurance companies try to get their outside counsel to use flat fee, task based structures,  but is this really realistic for mediation?  A repeat user of mediation might not mind paying $1000 flat fee for a one-hour mediation one week and the same $1000 for a nine-hour case the next, but how would the one-time user feel?

I’d love to hear your ideas.  What would be a fair way to price mediation services other than hourly?

Well That Was Odd.

I didn’t question the first $40 check .  While I told this particular party I would waive his (already reduced) fee due to his being on Social Security disability, I figured he was trying to make good.

The second $40 check gave me some pause, but I still figured this party was trying to pay what was owed.

The third check threw me because the three checks totaled more than what he would have owed me for my time.

So I dug out the agreement (which I had scanned to send to the Court – I don’t usually keep copies) and realized that the party was supposed to be paying the plaintiff that same amount.   After a few phone calls to both sides, the plaintiff said they hadn’t been paid on the Agreement and I now have to cut the plaintiff a $120 check.  I guess that vacation to the French Riviera is off…

I missed Lincoln’s Birthday yesterday.

But I love this quote, so I’ll post it today:

Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser – in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.

The Collected Works of Abraham Lincoln edited by Roy P. Basler, Volume II, “Notes for a Law Lecture” (July 1, 1850?), p. 81.

It is interesting to see a glimpse into the legal mindset of 150 years ago. Apparently, lawyers in Lincoln’s time were just as fond of taking every matter to court, and there were voices in the wilderness crying “Settle it…….settle it……”

As a litigator, I recognize that sometimes parties must fight for their rights. Sometimes litigation is the last best option. But there are also times when communication, cooperation, and compromise are best employed to resolve a dispute, and the parties need an experienced mediator who understands litigation, can analyze the risks, can help break communication barriers, and can recommend creative solutions.

Is Co-Mediation an Option for You?

While observing mediations to meet the requirements of the Georgia Office of Dispute Resolution, I watched a very interesting employment case with a local mediator I know.  Because she engaged me in the process, we ended up sort of “co-mediating” the case.   I remember at the time thinking that it could be a very effective manner of mediating cases, but wondered whether what type of cases could sustain the $400-500 per hour needed for two mediators.

Arizona attorney-mediator Alona Gottfried recently explored the concept of co-mediation on her blog and concluded that co-mediation

may not cost more if co-mediation in fact results in the mediation being more efficient and less time consuming. Further, if co-mediation is what is needed to resolve the matter, then it is worth the cost.

Something to keep in mind.

A Mediation Advocacy CLE Closer to Home

My Atlanta readers and clients might appreciate a Mediation Advocacy CLE slightly closer to home.  The Georgia Bar is offering their annual class on my birthday – March 18, 2009.  Bill Goodman is a well respected former trial lawyer and mediator who will certainly make the class informative and useful.   I am particularly interested in the segment on demonstrative evidence in mediation, about which my colleague Nancy Hudgins has written before.