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.

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?

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.

Really want to keep your dispute “quiet”? Hire a mediator early.

Mediator Kevin Whitaker recently commented on a news item in which a union official bemoaned the need to bring “a third party [the mediator] into our business.”   Kevin suggests that this is because “mediators don’t go around discussing their successes publicly.”

Is that really the case?  Would a union official really be wholly unaware of the benefit of mediation?  Doubtful. The fact that the union issued a press release complaining that it had to bring a third party into it’s business is completely disingenuous.   The official wanted public sympathy.   He wanted to make the big bad employer seem bigger and badder by suggesting that they wouldn’t bargain in “good faith”  and need a mediator to keep them “honest.”

Nevertheless, Kevin’s post makes some excellent points:

More disputes would be well served by the early assistance of dispute resolution specialist, someone who is interested in getting to a solution rather than defending a position or advancing an interest. Interestingly enough, with a skilled mediator’s help, odds are more disagreements will be resolved quietly before the dispute ever becomes newsworthy. Thus, if you really want to keep outsiders “out” and your dispute quiet, mediation may actually be the best place to begin.

I always tell the parties in mediation that one of the key benefits is confidentiality.   Free from the concern that their willingness to compromise might be used against them later, the parties should be able to discuss their interests candidly.  Furthermore, if the subject matter of the suit is particularly sensitive, like a harassment suit or even malpractice allegations, mediation can be a way to discuss settlement without putting the matter on record.  I keep things so confidential, I even shred my notes after mediation.

If you really want to keep your dipsute “quiet”, then you should really consider hiring a mediator early.

A Case For Maintaining Mediation Notes?

Back from his aborted summer vacation, Geoff Sharp brings our attention to an interesting article from Australian mediator Michael Creelman.    Mr. Creelman argues that the practice of destroying notes after mediation “could eventually be the downfall of those particular mediators.”

The argument seems to revolve around two situations – the mediator as witness in later proceedings and the mediator as defendant in a malpractice action.

I’m not sure that the former situation presents a compelling argument, at least here in the Great State of Georgia.  Under our rules,the mediator for a court-annexed or court-referred mediation cannot be

subpoenaed or otherwise required to testify concerning a mediation in any subsequent administrative or judicial proceeding.  A neutral’s notes or records are not subject to discovery. Notes and records of a court ADR program are not subject to discovery to the extent that such notes or records pertain to cases and parties ordered or referred by a court to the program.

That would preclude any necessity for maintaining notes.  If they are not subject to discovery, and are not admissible, then why maintain them at all?

It remains to be seen whether this rule would protect the mediator in a strictly private mediation.  If not, then Federal Rule of Evidence 408 may provide some protection for a mediator, as the communications during a mediation can be considered “conduct or statements made in compromise negotiations.”  Further, while there is some ambiguity in the law, the Georgia counterpart to Rule 408, OCGA 24-3-7, states, in part, that “admissions or propositions made with a view to a compromise are not proper evidence.”  Either way, I see no compelling reason to keep my notes, and like Geoff, I make sure to tell my clients that I destroy all notes upon completion of the mediation.

As for the latter situation, the Model Court Mediation Rules for Georgia state that

No neutral in a court-annexed or court-referred program shall be held liable for civil damages for any statement, action, omission or decision made in the course of any ADR process unless that statement, action, omission or decision is 1) grossly negligent and made with malice or 2) is in willful disregard of the safety or property of any party to the ADR process.

Again, there is no such immunity for strictly private mediations; however, I struggle to see any viable theory under which a mediator can be held liable for professional malpractice or negligence.   For starters, what is the legal duty?  And what would be the breach of that duty?  If the parties are represented by counsel, where is the causation?

Frankly, I got into mediation because I am terrible at record keeping.  I am not a pack rat.  I am not good at saving things (it drives my accountant – and my wife – nuts).  I relied on the abilities of my assistants to keep my files straight.  I really like the ability to shred my notes at the end of the mediation.  Personal predilections aside, I still think that the best way to maintain the confidentiality of a mediation is to shred the notes the mediator has taken.

This might present an opportunity to write an article for the State Bar Journal. Maybe I’ll put it on my TO DO list…..

Irritating Mediation Phrases

Over at DIALOGIC Mediation, Arnold Zeman has posted the 10 most irritating phrases/expressions/idioms as compiled by an Oxford University study.  At the end of the day, I personally agree with most of them.  There are also a few that I’d add.  Eh, it is what it is.

It got me thinking, though, about overused phrases, gimmicks and crutches that some mediators use when they can’t think of anything productive to say.

I’d love to hear from you.  If you are a mediator, what phrase, idiom or expression causes you to cringe when you hear a party say it?  If you are a lawyer or repeat user of mediation,  what phrase, idiom or expression makes you sigh deeply in disbelief when you hear the mediator say it?

I’ll get the ball rolling.   I have to stifle my impulse to roll my eyes when a party says, “It’s a matter of principle.”

One last thought – is it really irritating a) if your client has never heard it and b) it WORKS!?

No respect, I tell ya. NO respect.

We are a TV household.  My wife works in television and we both enjoy a wide variety of shows, including 30 Rock, the Emmy-winning TV show about the behind-the-scene action of a fake TV show.

Last night’s episode revolved around dispute resolution, in a roundabout sort of way.  I say that because much like Seinfeld, there is less of a plot than there is a “theme” to each episode.   Jenna , the co-star of the show within the show, was feuding with her co-star Tracy because Tracy refused to pay Jenna for her voice-over work on his pornographic video game.  Yes.  You read that correctly.  The Executive Producer, played by Sarah Palin Tina Fey, orders the stars to mediation.

Of course, the mediator was made out to be spineless, ineffective, poorly dressed, and transgender.

In the end, the dispute was resolved by an irritatingly peppy 12-year old whom Tina Fey believed to be Oprah because she was hopped up on “Comanapracil,” a prescription sleep mediation which warns of side effects like “dizziness, sexual nightmares and sleep crime.”

So, to recap, mediators are ineffective tools in short sleeved dress shirts and any dispute can be resolved be a peppy 12 year-old whose only qualification was middle school Vice President.

No respect, I tell ya.