By Dr. Gary Deel, Ph.D., J.D.
Faculty Director, School of Business, American Public University
Note: This is the third article in a four-part series on mediation alternatives.
Mediation is usually a voluntary process. But what about when it isn’t voluntary? There is a strong argument that compulsory mediation – for example, by way of court order – violates an individual’s Fourteenth Amendment right to due process.
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Some court systems today actively promote presumptive mediation for all cases filed. Presumptive mediation is the notion that mediation should always be tried first before any dispute makes it into a courtroom. Although this may seem like a generally good idea, it is a controversial one. There are a variety of good reasons both for and against this proposition.
Court systems have legitimate reasons for wanting to compel mediation. Alternative dispute resolution strategies in general dramatically reduce the pressure on overloaded court dockets as well as the public cost of legal remedial action. Additionally, studies have shown that even in disputes so hostile that the parties assume mediation would be futile, the process can inspire compromise and satisfactory settlement.
Court-Mandated Mediation Denies Disputants of Their Right to Civil Litigation, if Only Temporarily
However, this does not alleviate the fact that court-mandated mediation denies the disputants of their right to pursue civil litigation, if only temporarily. Further, if mediation is inherently a non-binding effort, as indeed it is, then must a party who has no interest in compromise still attend mediation? If they do attend, must they also participate? If they must participate, how much? And for how long?
Again, these questions are not at all clearly answered in the current paradigm of mediation law and policy. These questions are just scratching the surface of the complex ethical issues at hand here.
For example, here is another quandary from a related angle. If a party wishes to have his or her legal counsel attend court-mandated mediation as an attorney-advocate and the mediation fails, should the court be responsible for the fees that the attorney will charge the client for that representation?
And here’s one more. In the second part of this series, we talked about the issue of self-incrimination in mediation. But if mediation is compulsory and a party incriminates themselves during mediation, are they immune from prosecution by virtue of a Fifth Amendment violation?
Court-ordered mediation aside, mandatory mediation can also stem from agreement between parties. Most people would concur that any agreement freely made should bind the parties to all the terms, including mandatory mediation if applicable.
However, ethical quagmires arise when the bargaining power of the parties is so grossly imbalanced that contract provisions may become coercive simply by virtue of the leverage wielded by one party over another. These adhesion contracts create unfairness at the bargaining table.
Even if mediation is purely voluntary, there are also myriad ethical issues with respect to the duties of mediators and attorney-advocates. Several concerns arise with respect to mediators: their fitness for service in such capacities and their duties in the process.
First, it is important to note that the American Bar Association (ABA) distinguishes mediation from the formal practice of law. Thus, non-attorneys may technically serve in the role of mediator where credentialed and otherwise eligible.
However, it is important to note that while the ABA’s position as a guiding organization in the legal practice would likely be persuasive evidence in court, it is not a regulating governmental entity. Its policies do not have the same weight or effect as law.
A Mediator Can Breach the Boundary of Legal Practice by Giving Legal Advice
Despite mediation having been construed as materially different from practicing law, a mediator giving legal advice and/or participating in other activities commonly reserved to legal counsel can easily breach the boundary of legal practice. That can have profound repercussions.
The unauthorized practice of law is illegal for non-attorneys and can result in civil and/or criminal liability. However, an attorney engaged in the practice of law while functioning as a mediator may constitute a breach of that attorney’s professional responsibilities for candor and loyalty.
Assuming mediators are not engaging in the practice of law while mediating, they must also be both impartial and neutral with respect to the matters that come before them. According to the National Conference of Commissioners on Uniform State Laws, impartiality means that in a mediation matter, a mediator mustn’t harbor any favoritism or bias toward one disputant over any other.
Neutrality, on the other hand, deals with the mediator’s lack of bias with respect to the disputes being mediated. Suppose a mediator accepts a request to mediate a dispute between two parties, but one of the parties is a former client of the mediator’s law firm. It is likely that the mediator would be unfit here for lack of impartiality.
On the other hand, changing the facts slightly, suppose the mediator has no past history or bias toward either disputant, but the dispute itself concerns a claim of disability discrimination. In addition, the mediator is a disabled person and an activist for the promotion of rights for disabled people. Here, the mediator is also likely to be unfit, but this time, the mediator lacks neutrality regarding the actual issue under dispute.
It is not necessarily a legal obligation for attorneys to discuss ADR options with their clients, but it is typically recommended that they do so in the interest of competent client advocacy. However, notwithstanding a duty to discuss ADR at all, if mediation is pursued by an attorney’s client or if mediation is mandated by court order or agreement between the parties, then attorneys run into yet another conflict: the duty of vigorous advocacy.
Commensurate with their duties of fiduciary, loyalty, confidentiality and competence, attorneys also have a duty to use their best efforts to zealously defend their client’s interests in pursuing the best possible outcome for that client. Mediation, however, subordinates the selfish interests of individual disputants in favor of pursuing a healthy compromise that is fair, even if it is less than optimal for either party.
It could be argued that the very philosophy of mediation is antithetical to the spirit of attorney advocacy. And although attorneys may be asked to represent their client’s interests in mediation, their duties in some sense preclude them from accepting any compromise that falls short of the calculated value of a victory that the attorney reasonably thinks he or she might be able to attain through formal litigation.
In the final installment of this article series, we’ll review the key advantages and disadvantages to mediation as a dispute resolution option.
About the Author
Dr. Gary Deel is a Faculty Director with the School of Business at American Public University. He holds a J.D. in Law and a Ph.D. in Hospitality/Business Management. Gary teaches human resources and employment law classes for American Public University, the University of Central Florida, Colorado State University and others.
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