Mediation Message No. 72



Mediation confidentiality, which allows attorney incompetence and insolence to go unchecked until the Legislature says otherwise (see Cassel v. Superior Court (2011) 51 Cal.4th 113), can create occasional problems for mediators. Although we cannot report attorney misconduct to the court (see Foxgate Homeowners’ Association v. Bramalea California, Inc. (2001) 26 Cal.4th 1) and have no power to ensure the substantive fairness of an agreement reached by the parties (Rule of Court 3.857, subdivision (b)), it is my opinion, to paraphrase Brendan Sullivan’s statement before the United States Senate’s Iran-Contra panel, “We’re not potted plants.”
As I mentioned, it is not a mediator’s obligation (nor that of jurists) to ensure that civil litigants receive the best effort from their attorneys. After all, we’re not called “neutrals” for nothing. On the other hand, like sitting judges, I believe it is our duty to uphold the sanctity of the law so that a small number of attorneys do not use mediation confidentiality as a shield for their transgressions. Those acts or mistakes, unintentional and intentional, can be in the form of woeful incompetence, deliberate falsehoods or violations of the Rules of Professional Conduct.
The most difficult area to address is gross incompetence because, to repeat, we are neutrals in every sense of the word and do not represent any party at mediation. Regardless, there are some situations so extreme as to cry out for attention. For example, I don’t think a mediator should remain silent when confronted by an attorney who has performed no meaningful work for the client and has little or no familiarity with the substantive law or facts at issue. Fortunately, this is a rare situation – but not completely unknown. In my opinion, if this should occur, the mediator, while settling the case (and not causing a continuance or the incompetent attorney to withdraw), should ask the neglectful attorney, outside the presence of everyone else, hypothetical questions about the applicable law or facts. (For example, “Have you considered that the statute of limitations may very well be an absolute defense?” or “How are you going to defend this case when you have no witnesses to lay the foundation for the evidence?”) This type of inquiry should open the attorney’s eyes and make settlement more possible.
Attorney misconduct, as opposed to mere neglect, demands a more direct approach. Whether the violation be the apparent representation of multiple parties without a conflict waiver or a deliberate falsehood, the mediator should speak directly, and without ambiguity, to the attorney about that conduct outside the presence of his or her client. Hopefully, the unacceptable conduct will be corrected or avoided; if it shall be, we’re all (including the client and the practice of law) the better for the mediator’s intercession.
Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067
(310) 201-0010

Copyright Michael D. Marcus, November 2011

Please visit my website at for information about my mediation and arbitration background and experience. Copies of my previous Mediation Messages and Arbitration Insights are available by going to the articles link on the website.

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