THE LARGEST COLLECTION OF LEGAL JOBS ON EARTH
LawCrossing Feature
Conflict of Duties: Mediation Confidentiality v. Fellow Attorney Misconduct While alternative dispute resolution processes have seen tremendous growth and support in the recent years, the lack of clear definitions on many fronts continue to plague attorneys engaged in such processes. One of the regions where this conflict is most painful is the conflict faced by attorneys serving as mediators in their balancing between mediation confidentiality and professional responsibility.
Even though most states have passed legislation
importance needed. Coupled with this is a chain of
mandating confidentiality for alternative dispute
decisions including NLRB v. Joseph Macaluso, Inc,
resolution and mediation processes, a large number of
where the court found that mediators cannot be asked
such rules work directly against rules of professional
to testify about the bargaining sessions they attended.
conduct that attorneys need to obey in reporting misconduct by fellow attorneys. Trying to decide
The Confusion:
between two mutually conflicting sets of obligations puts a mediating attorney in a fix, and the situation is
The confusion stems originally from the varied
quite common.
and disparate meanings attributed to the term “confidentiality” and its application upon instant
Mediation Confidentiality:
cases. The confusion escalates due to the lack of homogenous mediation rules in the country with almost
It is impossible for mediation to be effective without
every jurisdiction having their own statute concerning
guarantees of confidentiality of discussions. Open
mediation proceedings.
negotiations and letting down guards to meet on common ground is impossible with the threat of
National licensing or regulation of attorney-mediators
someone turning witness in ensuing and subsequent
are still at a nascent stage while in most states, rules
litigation. Confidentiality also assures the role of the
of confidentiality find disparate applications according
mediator as an unbiased third party. The mediator, not
to evolving mediation statutes.
being an arbitrator, is nothing more than a catalyst, an unbiased advisor who moves ahead the mediation
While the American Arbitration Association, the
process to a logical outcome.
American Bar Association and the Society of Professionals in Dispute Resolution are trying to redress
However, the attorney serving as a mediator is also
the situation by active pursuance of Model Standards
witness to discussions and acts of fellow attorneys,
of Conduct the application still falls short in addressing
which would be considered unethical, or outright as
the conflicts felt by attorney mediators.
misconduct were the scales of attorney misconduct applied to mediation proceedings. Naturally, the stress
While evidence rules ‘recognize’ the ‘attorney-client’
on the mediator in not reporting the witnessing of
relationships the extension of the protective umbrella
such misconduct, and thereby running the risk of
to the cause of attorneys acting as mediators is yet to
being construed as an accomplice or perpetrator in
crystallize in definable forms of assurance.
misconduct is substantial. Attorney disciplinary rules in most states are yet to address the issue with the
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