The Mediation Times

 

Which hat shall I wear today? – Mediator disciplined (USA)

by Amanda on July 21, 2009

A report published last month by the Georgia Commission on Dispute Resolution found a family mediator, who was also a licensed psychologist, guilty of gross misconduct.  This refers to breaches of their published Ethical Standards for Mediators, and specifically for failing to “avoid any dual relationship with a party which would cause any question about the mediator’s impartiality” and for failing to show “impartiality in word and deed” and “failing to maintain the confidentiality of the statements made in mediation.”

I have a strong sense that this is a landmark story for mediators around the world for many reasons and that commercial mediators should not be tempted to discount the importance of this on the basis that it concerns a family mediator.

Which hat shall I wear today?

Which hat shall I wear today?

The main points in the report are as follows:

The Committee found that Respondent established relationships with the subject matter of the couple’s divorce, and that Respondent engaged in multiple professional relationships with Complainant’s family, in violation of the Ethical Standards for Mediators. Respondent’s multiple roles created a clear conflict of interest and eroded the integrity of the mediation process. And it was foreseeable that Respondent’s multiple roles would prompt Complainant to question Respondent’s impartiality as a mediator, even if Respondent did not display any actual partiality. When it was clear that Respondent’s credibility was beyond repair, Respondent did not withdraw as mediator as the rules require.

The second breach occurred because ‘in denying the motion, the court wrote in its order that it “found [Respondent’s] testimony and involvement with the parties in this case questionable at best.”

and then

“In May 2007, Respondent submitted to the court an eight-page affidavit because his “integrity and skill as a mediator was called into question in court.” The court needed to know “the true reason for the failed mediation,” Respondent stated. “I sought only to clear my name by describing [Complainant’s] manner and approach throughout the mediation process.

The Commission found that

By recounting in his affidavit Complainant’s behavior during the mediation, Respondent apparently believed that Complainant’s behavior was not a “statement” or “information” and therefore not subject to confidentiality requirements. That is incorrect, as emphasized by Advisory Opinion 6.4 Therefore Respondent’s description in his affidavit of Complainant’s behavior in the mediation violated the confidentiality rules. 5 Of course, a party’s oral statements during a mediation would certainly be “information”and thus confidential. Therefore Respondent’s quoting and paraphrasing of Complainant’s mediation and caucus statements in the affidavit violated the confidentiality rules. 6.

To sum up, Respondent’s testifying voluntarily in open court about the mediation and Respondent’s voluntary submission to the court of an affidavit detailing Complainant’s behavior and words in the mediation constituted multiple violations of the confidentiality rules.

Conclusion
This case demonstrates the fragility of a mediator’s credibility and the need for the mediator to scrupulously guard against even the perception of impartiality and bias. It also shows how that credibility, once lost, is nearly impossible to restore. Therefore, the committee strongly cautions against mediators handling cases in which the parties have engaged or intend to engage the mediator in another professional capacity. Mediators may find themselves violating not just the ethics rules for mediators, but also the ethics rules governing their other professions.

The Committee further recommends that mediators never voluntarily testify about their mediations under any circumstances other than those covered by the exceptions to confidentiality in the Supreme Court ADR Rules. If necessary, subpoenaed mediators should enlist the assistance of the local court ADR program director or the Georgia Office of Dispute Resolution in quashing the subpoena and educating court and counsel.

Likewise courts should never require or allow mediators to testify about their mediations. The mediator’s promise of privacy to the parties – which allows them to communicate fully and openly without fear that the information would be used against them later – is critical to the success of the mediation process.

The fact that the Georgia Commission on Dispute Resolution chose to publish the report is significant. It sends a clear message that having an Ethical Standards for Mediators means something and that those responsible for supervising should be and are prepared to investigate and take action. This is good for the profession. It is also good for the promotion of self regulation as opposed to the any other variety.

From the practicing mediator’s point of view (and I include commercial mediators in this) there are a number of helpful reminders. I do not know all the facts and circumstances and so the following points arise from my thoughts about the significance of this report and the issues identified by the commission.

  1. re-read your own code of ethics and reflect on the conditions where you might breach the code;
  2. be aware that your determination to find a solution doesn’t keep you engaged in the mediation for longer than is useful to the parties: maintain your objectivity;
  3. be aware that your expertise in other fields doesn’t cloud your judgment or seduce you into taking inappropriate risks. Simply put, when you are engaged as a mediator, act as a mediator and more importantly, be seen to act as a mediator and not as a therapist/counselor/lawyer/barrister/arbitrator;
  4. resist all temptation to leverage your other business practice development from your mediations.  It is so easy to say “I can do that for you”. Good intentions are not a good defence!
  5. Notwithstanding that one’s reputation is vital working capital, be careful how quickly you rise to defend it and be sure you need to. Perhaps someone else is better placed to do that for you. Paradoxically, the ego is so often the enemy of reputation.

I feel extremely sorry for the mediator in question. This is the mediator’s nightmare. It does bring home the importance of the support of a professional body, peer reviews, and developing a good habit of reflective practice all of these help to minimise the risk of the “train leaving the rails”.

Does this story make you feel uncomfortable? Do you agree or do you have different views? Have you had a close shave?

2 comments
Debra Healy
Debra Healy

Oops - my post was too long-winded. . .here's the rest of it though:

I'd be interested in knowing, beyond the disciplinary action of the commission against the mediator, if: a) the mediator may have also been disciplined by the state board of psychologists, and/or 2) if either or both of the parties in this case have pursued a negligence claim against the mediator and/or if there's any sort of statutory remedy for damages - which then raises the question of mediator liability insurance.

This case should certainly raise a red flag for all mediators: reflect. If in doubt, seek counsel.

Thanks for your thoughtful consideration of the significance of this case for all mediators.

Debra

Debra Healy
Debra Healy

It's difficult to understand how the mediator/psychologist could have failed to perceive the potential impropriety (or potential perception of impropriety) regarding his decision to wear two professional "hats" in this case. This would be similar to an attorney/real estate appraiser not only agreeing to represent opposing parties in a real property dispute, but then conducting an appraisal of the subject matter property at the request of one of the parties.

With regard to the breach of confidentiality, I'm wondering if the mediator/respondent in this case sought legal counsel. I can't imagine any attorney advising the mediator: 1) not to attempt to quash the subpoena, or 2) to disclose anything about any mediation in a court document, let alone a sworn affidavit.

Debra

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