Unethical Practice of Mediation by Attorneys | PhloxADR

By: Dr. Justin Wood, Th.d, CJME

Preface

Primarily: I am not saying all attorneys who practice mediation are unethical but there are many who clearly violate both mediation and attorney ethics rules. Secondarily: Anyone setting as a mediator must adhere to a guideline of neutrality, ovoid using private and confidential information against a participant, forbid giving legal advice, allow the parties to make their own informed decisions, and contractually disclose their bias to their client. Thirdly: I am writing this at the request of several people, many whom are attorneys, that see this unethical practice and would like to see proper mediation ethics upheld.

Attorney as Mediator Qualifications

Many attorneys will quickly jump at a chance to be a mediator as it was taught in law school and a required course. Other than a few hours course work and volunteering for a state program for a short term, what experience or training do they have as a mediator.

Would you hire any doctor to perform surgery, NO; Yet, surgery is a required medical course. Would you hire any engineer to build a skyscraper, NO; Yet, skyscrape buildings are a part of the engineering course. Would you hire an attorney who does not perform yearly required legal education, NO; You can’t as their law license is suspended. Then why would you hire a mediator who does not comply with statutory mandated legal education (12 OS 1825)?

Attorney Ethical Issues

When I see ethical issues, it normally comes from a party that has hired an attorney to file a law suit against someone else. Somewhere along the way, the attorney sits in as the mediator. How is this Possible.??  A mediator is a third-party neutral who has no personal gain in the outcome and does not have loyalty to either party or the matter-at-hand, and can handle the privacy and confidentiality of BOTH parties.  Where an attorney is the obverse. An attorney is a hired professional who has a duty to represent a party; to which, has the express ethical responsibility to advise, negotiate and litigate in the best interest of that party. This means, if the attorney has information that benefits the client they cannot withhold using this information which would be detrimental to the client.

How can an attorney/mediator not breach their legal ethical responsibility by failing to advise their client? If the attorney/mediator fails to give a client proper legal advice, they breach legal ethics but if they do give the client proper legal advice they breach mediation ethics. If the attorney/mediator gives the opposing party legal advice, then they are breaching both mediation ethics and legal ethics as this could be detrimental to their client.

Another Ethical Breach

I have seen many people duped into going to mediation by another party’s attorney. They have their legal secretary or another attorney at the same firm or close legal colleague sit as the mediator. A mediator must disclose any perceived bias or relationship with any of the parties and the matter-at-hand. How is this possible if the legal secretary owes their job to the firm or attorney? If a situation arises, the legal secretary will side with the attorney who hires them, be stupid if they didn’t. An attorney at the same firm or legal colleague has a relationship with the attorney. That in its self is a conflict of interest.

Ethical Breach Not Allowed

There are professional rules of conduct for attorneys and one said rule governs attorneys who wish to set as a mediator.

Oklahoma Rules of Professional Conduct – Chapter 1, App. 3-A
Client-Lawyer Relationship – Rule 1.12. Former Judge, Arbitrator, Mediator Or Other Third-Party Neutral

.. a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, arbitrator, or law clerk to such a person, or as a mediator or other third-party neutral, unless all parties to the proceeding give informed consent, confirmed in writing.

Most attorneys do not disclose this rule or the subsequent rules of mediation to their client nor the secondary party. This gives the attorney a biased, unrestricted, non-reviewable, clearly deceptive, upper hand in the negotiating process. Furthermore; if no written contract was initiated prior to the mediation disclosing the attorneys bias toward their client, as would be required by statute and rule, this process is impeachable and unethical.

Solution to Unethical Attorney Mediators

After lengthy discussions, it has become clear that an attorney can be a valid and ethical mediator, if certain rules could be followed.

First; the attorney needs to decide: are they an attorney or mediator? Secondly, uphold all mediation ethics and guidelines by disclosing biases, conflicts of interests and legal ethics. Third; an attorney who wishes to be a mediator of a retaining client should: a) Refund all monies obtained from the client, b) Inform the client that further litigation would have to be initiated outside the firm without referral. This allows the attorney to practice law as they were educated and upholds all professional ethics and upholds the quality of the dispute resolution process.

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