Legal malpractice claims arising out of the efforts of an attorney/mediator are rare. (Grievances are a bit more common.) There simply is no attorney/client relationship and the setting is more non-adversarial than the courtroom. That said; there still is a risk. Advice given by the attorney/mediator can unintentionally establish an attorney/client relationship and therein lies one concern.

In an article entitled The Risks Of Neutrality – Reconsidering The Term And Concept, by Robert Benjamin (Ethics Forum, Mediation News, Summer 1998. Vol. 17, No. 3, pages 8-9 Academy of Family Mediators), the author questions the use of terms such as “neutral” and “impartial” in practice standards, legislation, in the literature and, perhaps most importantly, with parties involved in mediation. To summarize Mr. Benjamin’s thoughts, although we all generally understand what is meant by the terms “neutral” and “impartial,” parties to mediation may have a less clear understanding. The use of these terms can set the parties up with unreasonable expectations about the mediator’s behavior. The parties to the mediation could come to expect behavior that may not, and perhaps should not, be considered realistic in mediation.

Mr. Benjamin raises two examples. First, suppose a party perceives the mediator as having been more attentive to one party. That extra attention could easily be viewed as partiality and lead to a formal grievance. Yet, a mediator cannot remain distant and neutral and still be successful. The second, a mediator questions each party about their respective perspectives, raises concerns, and anticipates unintended consequences implicit in a potential course of action to assure that the parties’ understandings and agreements are informed and consensual. How might this be perceived? Again, the bulk of grievances against mediators arise from actions that appear to a party to contravene neutrality.

The attorney/mediator should look at his or her role in establishing unreasonable or inaccurate expectations by the parties. The alternative word that Mr. Benjamin suggests using is “balanced.” He suggests that a mediator who is balanced has permission to question both parties about their negotiating perspective and inquire about any circumstance or matter germane to an effective, resilient agreement. The message to deliver to all parties is one that clearly defines the role of mediator so that party expectations are in line with yours. Focus on describing your role as fair, balanced and involved as opposed to impartial, neutral and disengaged.

I suspect most attorney/mediators would agree that a mediator cannot outright lie to any of the parties. By way of example, the Ethical Standards of Professional Responsibility of the Society of Professionals in Dispute Resolution state that mediators “should be honest.” Unfortunately, there is no explanation of what “honest” means. I also suspect that most attorney/mediators would agree that a rule requiring absolute and total honesty from a mediator period would do much to undermine the entire process. No party to mediation would expect the process to proceed in this way. When you factor in the posturing done by attorneys who represent the parties involved, the issue of what are the acceptable limits to deception in mediation becomes significant.

There really is little guidance available to mediators in terms of rules or defined standards. Yet, somewhere within the range of outright lying to complete truthfulness, a line does need to be drawn. In his article Defining The Ethical Limits Of Acceptable Deception in Mediation (published in Brief the Journal of the Dupage County Bar Association, Illinois 11,29; or on the web at www.mediate.com/articles/cooley1.cfm), author John Cooley sets forth a reference framework from which rules defining acceptable deception could be developed. I would like to highlight two points.

The first is that mediators must remain cognizant of the nature and purpose of the mediation throughout the entire process. The process is one of information management geared toward resolution of conflict. Parties continuously develop and share information face-to-face or through the mediator. As information is shared, parties continually re-evaluate their perspective. Thus, truth is dynamic and changing throughout. A party may enter mediation stating that the bottom line is $50,000 yet happily conclude the mediation walking away with $37,000.

The second point Mr. Cooley made is that a mediator’s efforts not to deceive must be balanced against the need to accomplish the purpose of the mediation, which is resolving the conflict. Again, this is not to suggest that the ends always justify the means. Mr. Cooley raises the following thought; “May the truth be bent, colored, tinted, veneered, or hidden by a mediator or mediation advocate if the result is achieving a satisfactory resolution, or better yet, a win-win solution without harm to any party? In short, is there such a thing as a noble lie?” I am not writing to advocate the idea that a noble lie may have a place in mediation for I do not believe that it does. The purpose here is simply to ask the question for learning can occur in considering the answer.

I believe that every mediator attempts to apply a self-imposed ethical standard regarding truth. I encourage mediators to consider reasonableness and fairness within their standard, keeping the above points in mind as many of the ethical dilemmas that are commonly discussed involve one, if not both, of the points. In fact, consider putting your ethical standard into words and share it with all future participants in mediation. Express your desire to see that all participants in the mediation seek to operate according to this standard. I see this approach as garnering respect for the mediator and the process. I also readily admit that this is no easy task.

A focus on garnering participant respect is important in terms of risk management. If parties view or experience the process as one that fosters hidden truths and agendas, if they expect and then experience dishonesty and manipulation, then the negativity, distrust and frustration that can result will lead to a higher risk of a grievance or some other less than ideal outcome. We need to look at our own roles in creating dissatisfied parties or clients as the case may be. How many of you have ever heard of a satisfied client suing their attorney? The same rational holds true here. Respect for the mediator breeds trust in the mediator and trust in the process. Party satisfaction and a successful outcome is the more likely result.

I view disclosure as the most critical risk management concern and see it as essential at two principal times. First, when your services are requested, and again at the beginning of mediation. When your services are first requested, you must gather information regarding the identity of the parties to the mediation and the issue being mediated for the purpose of a conflicts check. Before going any further, you must disclose all actual or potential conflicts of interest reasonably known. Past professional relationships with any of the parties, personal or professional involvement in the matter or related matters, business interests in the matter or with any of the parties, prior professional relationships with counsel to any of the parties are all examples of the types of things that need to be considered and disclosed. Staff and other firm attorneys should also have a chance to review for conflicts along these lines. Once disclosed, if all parties choose to retain the mediator, the process may move forward.

Make certain that full disclosure and the subsequent waiver by all parties occurs in writing and keep in mind that the need to guard against conflicts of interest continues throughout the mediation as well as after its conclusion. By way of example, a mediator should avoid conflicts in recommending the services of other professionals whose services may be required at some point during the process. A party may view a specific referral as legal advice, or they might view the referral as giving the appearance of impropriety or partiality. Also, avoid entering into certain business or professional relationships, especially regarding a related matter or the subject property, with one of the parties after mediation has concluded as it could again cast doubt on your impartiality.

The greatest risk concern from a grievance or liability standpoint is the conflicts check because the concept of balance and impartiality of the mediator is so central to the effectiveness of the mediation process. You will never be able to defend against a claim of impartiality in the absence of documentation of full disclosure of all conflicts and a waiver from all parties.

As an aside, don’t forget to address the issue of fees up front. The fee agreement should be in writing and cannot be contingent upon the results of the mediation or upon any settlement amount. Finally, if asked, the mediator must disclose his or her qualifications to mediate the dispute.

The disclosure that occurs at the beginning of the actual mediation is quite different from what should occur when first contacted. Here the mediator should disclose any new conflict issues that have arisen and again obtain waivers, discuss confidentiality thoroughly, and clarify the mediator’s role.

The confidentiality discussion should include a review of the rules that address the principal concerns of the parties. It would be advisable to disclose that confidentiality will be maintained in total or in accordance with the expectations of the parties. The exceptions to this would be that all parties have granted permission to disclose certain information, or law or other public policy requires disclosure. Clarify that, in general, this means that a mediation communication is privileged and not subject to discovery or admissible in evidence unless waived by all parties. Note that this does not mean that evidence or information that is otherwise admissible or subject to discovery can become inadmissible or protected from discovery solely due to its disclosure or use in mediation.

Specific examples of disclosure exceptions that could be shared with the parties might include a threat or statement of a plan to inflict bodily harm or to commit a violent crime or communications that attempt to commit a crime or conceal an ongoing crime. In addition, a communication could be shared to prove or disprove a claim or complaint of professional misconduct or malpractice filed against the mediator. Finally, a disclosure of what can be reported to a court, administrative agency or other authority may be in order. In short, a mediator may only disclose whether the mediation has occurred or has terminated, whether a settlement was reached, who attended, and any communications that are exempted from the mediation communication privilege.

To sum up, my risk avoidance suggestions for attorney/mediators are as follows. Conduct a thorough conflicts check at the outset, disclose all conflicts, obtain waivers as necessary and document in writing. Establish realistic expectations about your role as mediator and detail how the mediation will be conducted. Clarify the purpose of the mediation in writing. Don’t unintentionally establish an attorney/client relationship by offering legal advice during mediation. Strive to maintain impartiality in your actions and statements. The goal is to have the parties view you as being both balanced and fair. Don’t focus exclusively on being neutral as this can create problems. Clarify everyone’s perspective regarding confidentiality, and document the understanding. Following these suggestions won’t guarantee that you will be trouble free in your mediation practice, but they will go a long way toward accomplishing this goal.