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Ethics Opinion I
Committee on Ethics of the Georgia Commission on Dispute
Resolution
Issued 2/23/98
The Committee on Ethics is asked to consider a complaint against
a mediator (Respondent) arising out of a mediation which the Respondent
conducted September 24, 1997. The parties were sent to mediation
after they appeared for trial on the issue of custody and visitation
of the ten-year-old daughter of the Complainant and the father of
the child. The parties and their counsel went directly to the Respondent's
office from the courthouse. Both parties were represented by counsel
at the mediation.
The mediator and the parties worked to establish a visitation schedule
with a calendar on a board. No written agreement or memorandum of
understanding was finalized at the mediation. On September 25, 1997,
the Respondent sent a memorandum to both attorneys containing the
points of what she described as an "agreement settling all
issues." She reduced the visitation schedule from the board
to narrative form and also attached a copy of the schedule, as it
appeared on the board, in calendar form.
On October 6, 1997, the Complainant sent a letter to her attorney
". . . rescinding any and all agreements which you may believe
to have been made at the mediation session on September 24, 1997."
The Complainant asked the Respondent for any documents pertaining
to the mediation which contained her signature or that of her attorney.
The Respondent responded that the file was privileged and that she
could not send the contents of the file or any part of the file
to her. After the ADR Program authorized her to release to the Complainant
documents which were already furnished to the judge, the Respondent
did so. She also executed and sent to both parties an affidavit
to the effect that the mediation was held and that the parties had
reached agreement.
On October 7, 1997, the Complainant's attorney filed with the clerk
of Superior Court a Notice of Withdrawal and Request to Withdraw
from representation of the Complainant. Following a hearing, the
Superior Court granted the father of the child's Motion to Enforce
Settlement on December 19, 1997.
Issues
1. Voluntariness
A. Process issues
- Whether the Respondent fully explained the mediation process
so that the Complainant had the opportunity to bargain from
a position of informed consent.
- Whether the Respondent had a duty to discuss with the Complainant
the pros and cons of proceeding with or without an attorney
present at the mediation.
- Whether the Respondent should have informed the Complainant
that a guardian ad litem could be present to represent the minor
child.
- Whether the Respondent's asking the parties to sign a blank
agreement "checkoff" and billing statement form at
the beginning of the mediation violated ethical principles regarding
voluntariness.
B. Coercion
Whether the Respondent coerced the Complainant during the mediation
process.
2. Neutrality
A. Whether the fact that two members of the Respondent's law
firm were on a witness list for the father of the child created
a conflict of interest that should have been revealed.
B. Whether the Respondent displayed personal bias against the
Complainant during the mediation.
3. Confidentiality
Whether the Respondent breached confidentiality in executing
an affidavit about the fact that a mediation was held and that
an agreement had been reached.
Findings
1. Voluntariness
A. Process issues
Many of the points of the complaint go to the question of how thoroughly
the Respondent explained the mediation process. The Ethical Standards
for Mediators, which appears as Appendix C to the Georgia Supreme
Court Alternative Dispute Resolution Rules, provide at I.A. as follows:
A. In order for parties to exercise self-determination they
must understand the mediation process and be willing to participate
in the process. A principal duty of the mediator is to fully explain
the mediation process. This explanation should include:
- An explanation of the role of the mediator as a neutral
person who will facilitate the discussion between the parties
but who will not coerce or control the outcome;
- An explanation of the procedure which will be followed
during the mediation session;
- An explanation of the pledge of confidentiality which
binds the mediator and any limitations upon the extent of confidentiality;
- An explanation of the fact that the mediator will not
give legal or financial advice and that if expert advice is
needed, parties will be expected to refer to outside experts;
- An explanation that where participation is mandated by
the court, the participation of the parties is all that is required
and settlement cannot be mandated;
- An explanation that the mediation can be terminated at
any time by the mediator or the parties;
- An explanation that parties who participate in mediation
are expected to negotiate in an atmosphere of good faith and
full disclosure of matters material to any agreement reached;
- An explanation that the parties are free to consult legal
counsel at any time and are encouraged to have any agreement
reviewed by independent counsel prior to signing;
- An explanation that a mediated agreement, once signed,
can have a significant effect upon the rights of the parties
and upon the status of the case.
The Complainant contends that a sense of urgency pervaded the mediation.
The parties and counsel went to the courthouse prepared for trial.
When the judge ordered the case to mediation, the attorneys for
the parties agreed upon the Respondent as the mediator. She was
called at home by the judge. The parties and the attorneys walked
directly to the Respondent's office from the courthouse and immediately
began the mediation. The Complainant contends that because of this,
and because of the Respondent's failure to adequately explain the
mediation process, she was not prepared for what transpired. Specifically,
she contends that the Respondent failed (1) to explain that the
mediation could be terminated at any time, (2) to clarify her right
to consult her lawyer, and (3) to make her aware that a guardian
ad litem could be present to protect her daughter's interests.
The Committee finds that the mediation was conducted under circumstances
which did lead to a sense of urgency. Both the Respondent, who was
called from her home to come immediately to the office to conduct
the mediation, and the parties and counsel, who came directly from
the courthouse, must have felt rushed.
The Committee believes that when a mediation takes place in an
atmosphere of urgency, there is a danger that problems will arise
because parties do not fully understand the process. It is hard
to imagine a situation where there is a genuine need to rush into
a mediation. The Committee feels that it is important that every
mediator strive to begin every mediation in an atmosphere of calm.
It is particularly important that parties unfamiliar with mediation
are allowed ample time to feel centered and ready to begin. However,
the Committee finds that the Respondent's opening statement was
detailed and calculated to give parties an opportunity to collect
themselves, to become familiar with the process, and to ask questions.
The Committee finds that the mediation itself, which took five hours,
was not rushed in any respect. While it is true that the mediator
herself worked through lunch, there is no indication that anyone
else did so. Therefore, the Committee concludes that the Respondent
was not responsible for any feeling of urgency experienced by the
parties to the mediation and that she tried to create an atmosphere
of calm.
The Committee finds that the Respondent did not tell the parties
of their right to terminate the mediation. Although the Respondent's
opening statement as described at the Ethics Committee hearing emphasized
party choice over and over again, she did not make clear to the
parties their right to terminate the mediation. This is an important
right, and parties should specifically understand that while they
may have been ordered by the court to attend a mediation session,
they have the right to terminate the session. Therefore, the Committee
concludes that the Respondent technically violated the Ethical Standards
for Mediators, I.A.6.
The Complainant contends that at various times during the mediation
she was confused about the details of the plan under discussion.
She says that she was confused by the chart developed on the board
but that it was her understanding that at the end of the day she
would still have an opportunity to review any agreement with her
lawyer. The Complainant's attorney was present and available for
consultation throughout the mediation. The Complainant complains
that the Respondent did not discuss the pros and cons of proceeding
with or without an attorney present at the mediation. The Committee
finds that the Respondent had no such duty. The Mediation Guidelines
prepared by the ADR Program provide in part that "If an agreement
is reached, all parties will have ten (10) days to have it reviewed
by their respective attorneys." Although the Committee finds
that the language from the Mediation Guidelines regarding attorney
review of any agreement is indeed ambiguous, the Committee finds
that the intent of the language from the Mediation Guidelines is
that a party who is not represented at the mediation will
have an opportunity to have any agreement reviewed by a lawyer.
Although the Committee finds that this provision should be clarified
in the guidelines, the Committee concludes that responsibility for
ambiguity cannot be attributed to the Respondent.
The Committee finds that the Respondent did not inform the parties
that a guardian ad litem could be present at the mediation. A guardian
ad litem is appointed by the court and owes a duty to report to
the court. Because he or she may not be able to keep confidentiality,
the guardian's presence at a mediation conference may be problematic.
Since custody agreements are always subject to review by the court,
the opportunity for a guardian's input at that juncture can provide
protection for the best interest of the child. The Committee concludes
that a mediator has no responsibility to inform parties that a guardian
ad litem can be appointed or that a guardian could be present at
the mediation
The Committee finds that the Respondent asked the parties to sign
in blank a "Mediation Report" form prepared by the ADR
Program. The report was filled out at the end of the mediation,
indicating that the mediation lasted from 10:15 a.m. until 3:00
p.m., that a full agreement was reached, and that the amount owed
by each party was $296.88. The Committee concludes that while asking
parties to sign such a form in blank at the beginning of the mediation
is not good practice, it is not an ethical violation.
B. Coercion
The Complainant contends that she was coerced by the Respondent
at many points during the mediation. The Committee finds that there
is no persuasive evidence that the Respondent coerced the Complainant.
The Complainant is a very articulate and forceful person who was
represented by counsel throughout the mediation. Although there
is evidence that the Complainant cried during the mediation and
that she may have felt some confusion at different points, it is
not at all unusual for parties to experience a wide range of emotion
during a mediation. There is no indication that there was anything
unusual about the atmosphere of this mediation. Several people present
described an atmosphere of relief and lightheartedness at the conclusion
of the session. The Complainant's admission at the Committee hearing
that she was in general agreement with the content of the visitation
schedule would be an odd coincidence had she been coerced. The Committee
concludes that the Respondent did not coerce the Complainant at
any point.
2. Neutrality
A. The Committee finds that two members of the Respondent's law
firm were on a witness list for the father of the child. Further,
one of the two lawyers had represented the Complainant in another
matter. However, the Committee also finds that the Respondent was
unaware of these connections to the parties. The Ethical Standards
for Mediators create no duty to conduct a search for conflicts that
would have revealed the connections. Therefore, the Committee concludes
that the Respondent committed no ethical violation involving a conflict
of interest.
B. The Complainant contends that the Respondent exhibited personal
bias toward her. The Committee finds that there is no persuasive
evidence of personal bias on the part of the Respondent and concludes
that there was no ethical violation in this regard.
3. Confidentiality
The Respondent executed an affidavit that was used in the Motion
to Enforce Agreement brought by the father of the child. The affiant
stated that the mediation occurred. The affiant stated at Paragraph
5 that "At the conclusion of the mediation, when the parties
announced an agreement, the attorney for the Complainant turned
to the Complainant and specifically asked her if what was contained
on the board was her agreement. The Complainant answered in the
affirmative." The affiant stated at Paragraph 6 that "At
the conclusion of the mediation, when the parties announced an agreement,
the attorney for the father of the child turned to the father of
the child and specifically asked him if what was contained on the
board was his agreement. The father of the child answered in the
affirmative." The affiant concluded that "When the parties
and their attorneys left my office, it was with the understanding
that they had reached a full and binding agreement."
The Georgia Supreme Court Alternative Dispute Resolution Rules
provide at VII that "Neither the neutral nor any observer present
with permission of the parties in a court-annexed or court-referred
ADR process may be subpoenaed or otherwise required to testify concerning
a mediation . . . in any subsequent administrative or judicial proceeding."
By executing an affidavit, the Respondent was doing voluntarily
that which she could not be required to do - testifying. The Committee
finds that the execution of the affidavit was not good practice
and was very unwise. Further, the Committee concludes that when
she revealed in Paragraphs 5 and 6 what was said at the mediation,
she used language that might have been broader than necessary to
determine whether an agreement was reached.
Sanctions
The Committee has found one ethical violation which is technical
in nature. Although the Respondent carefully explained the concepts
of self-determination and choice to the parties, she did not specifically
explain the right of the parties to terminate the mediation. This
was a technical violation of Ethical Standard I.A.6. The Committee
believes that technical ethical violations could be found in every
mediation. There is no need to sanction technical violations of
the Ethical Standards for Mediators. The purpose of sanctions in
the context of ethics is to improve mediator performance through
education, not to punish. The purpose of stringent sanctions such
as removal from registration is to protect the public. The awareness
of a technical violation is sufficient to educate the mediator to
guard against such a violation in the future.
The Committee finds that the wording of Ethical Standard II and
Georgia Supreme Court Alternative Dispute Resolution Rule VII, Section
A, could lead to confusion regarding the mediator's testimony as
to the fact of the existence of an agreement. This confusion
could result from the provision of Rule VII that "An agreement
resulting from a court-annexed or court-referred mediation . . .
is not immune from discovery unless the parties agree in writing."
That language could be read to provide that the existence of oral
agreements as well as written agreements is subject to discovery.
Even under this reading of the rule, the Respondent may have gone
further than necessary to determine whether an agreement was reached
when she testified to what was said during the mediation. The rules
need to be clarified, and the concept of confidentiality needs to
be discussed more thoroughly in mediation training.
Summary
There are several lessons to be learned from this case concerning
"best practice." First, mediators should never allow a
sense of urgency to pervade the mediation session. The elements
of the opening statement should always include the explanation of
mediation found at Ethical Standard I.A. Secondly, mediators should
never ask parties to sign a form in blank to be filled out later.
Although this did not lead to an ethical problem in this case, it
could have done so. Thirdly, program rules and guidelines should
be clear about the right to have an attorney present. When program
rules provide that parties may have an attorney review an agreement
after mediation and that the attorney may object to any terms of
the agreement within a specified period, the rules should clearly
state whether a party who is represented by an attorney at mediation
has the right to have an agreement reviewed by an attorney after
the mediation.
Finally, this case points up the dangers inherent in failing to
reduce an agreement to writing at the mediation session. Where there
is agreement, a written memorandum of agreement or points of agreement
should be made by the mediator or counsel for the parties and signed
by the parties at the mediation. To recommend that all agreements
be reduced to writing in at least outline form and signed by parties
before leaving the mediation does not mean that mediators should
coerce unwilling parties into finalizing an agreement before leaving.
If the points of agreement are not clear, the mediator should call
a break, schedule another session, or do whatever is necessary to
allow parties to satisfy themselves that there is agreement. What
is recommended is that if it is clear that parties are in agreement,
this agreement should be memorialized while the parties are present.
There are several reasons for this recommendation. A written agreement
guards against the danger of misunderstanding. Reducing agreements
to writing while all parties are present provides the best opportunity
to correct misunderstanding. Since the writing would be the
highest and best evidence of the agreement, a signed written agreement
guards against the danger that the parties will try to call the
mediator to testify. Finally, a written agreement protects against
serious problems of proof when there is a motion to enforce an oral
agreement allegedly made in a highly confidential meeting.
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