Posts Tagged ‘ethical rules’

Mediation Message No. 72

MICHAEL MARCUS’S MEDIATION MESSAGE NO. 72

MEDIATORS ARE NOT POTTED PLANTS

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 www.marcusmediation.com 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.

Mediation Message No. 54

PROPOSED ETHICAL RULE CONCERNING MEDIATORS AND ARBITRATORS

The State Bar’s Special Commission for the Revision of the Rules of Professional Conduct (RRC), which is rewriting California’s Rules of Professional Conduct, has out for public comment eleven proposed ethical rules, one of which (rule 1.12) concerns mediators, arbitrators and former judges. The comment period for these rules ends on November 13, 2009.

California does not have an existing ethical rule for the conduct of mediators and arbitrators although Rules of Court 3.850 et seq. govern the activities of mediators in court-connected mediations. Those rules do not apply to privately retained mediators.

In part, proposed rule 1.12 provides that a lawyer:

• shall not represent anyone in a matter, without the consent of all of the parties, where that lawyer also participated personally and substantially as a mediator or arbitrator (subdivision a) and

• shall not negotiate for employment with a person who is a party, a lawyer for a party or with a law firm for a party in a matter in which that lawyer is participating personally and substantially as a mediator or arbitrator (subdivision b);

• However, a party arbitrator in a multimember arbitration panel is not prohibited from subsequently representing that same party (subdivision e).

Rule 1.12 is not controversial because it merely parallels existing and other proposed rules that protect the acquisition of confidential information, unless the affected parties have waived such confidentiality. (See, generally, Rule of Professional Conduct 3-310.) Also, the rule is directed to part-time mediators and arbitrators who still practice law, and not full-time neutrals such as myself. Nonetheless, any person interested in the subject matter should review the entire proposed rule, which can be viewed by clicking on the “public comment” link on the State Bar’s website and then clicking on the year 2009.

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, September 2009