The Ethical MediatorThe Ethical Mediator

Friday, January 16, 2009CPR Annual Meeting

The Ethical MediatorThe Ethical MediatorModerator:

• Lela P. LoveLela P. LovePanelists:

• Eric D. GreenEric D. Green• Antony WillisAntony Willis• Norris YangNorris Yang

ABA, AAA, ACR Model Standards of Conduct for MediatorsABA, AAA, ACR Model Standards of Conduct for MediatorsEuropean Code of Conduct for MediatorsEuropean Code of Conduct for Mediators

CPR-Georgetown Model Rule of Professional Conduct for CPR-Georgetown Model Rule of Professional Conduct for Lawyers as Third Party Neutrals Lawyers as Third Party Neutrals

• Party Self-Determination

• Mediator Competence

• Confidentiality• Quality of Process

• Independence and Neutrality/Conflicts of Interest

• Mediator Impartiality

• Fairness of Process

An Ethical Dilemma = Clash Between An Ethical Dilemma = Clash Between Competing Duties or PrinciplesCompeting Duties or Principles

Situation: Party requests a legal opinion from the mediator …Party requests a legal opinion from the mediator …

What’s at stake?:Neutrality and Impartiality

Self-determinationInformed Consent

Informed Decision-making Durable Agreements

Should the mediator give an opinion on the probable legal outcome?

““Fuzzy” Confidentiality Fuzzy” Confidentiality A Mediator’s Practical and Ethical Dilemma

ERIC GREEN

Should the mediator, if it is necessary to keep the parties at the table, disclose to each party that he

believes the other party is prepared to settle in the $50-65 million range?

Yes____ No____ Maybe____

Copyright 2009 Eric D. Green RESOLUTIONS LLC All rights reserved.

Coaching the PartiesCoaching the Parties A Mediator’s Practical and Ethical Dilemma

TONY WILLIS

Should the mediator give advice about strategy to Defendants to keep the mediation going?

Specifically, should he tell the Defendant NOT to make one “take it or leave it” offer?

Yes____ No____ Maybe____

Thanks, Jeff!

• Should a mediator sign Fairness Declarations in class action settlements?

• Should a mediator make promises about whether courts will apply confidentiality or privilege statutes in a particular way?

• Should a mediator ask parties to sign prospective waivers of liability in her agreement to mediate—even where the mediator is covered by liability insurance?