My Friend the Mediator
There is a storm brewing. The forecast was brought to my attention by a Mediator I know and have worked with in the past. He tells me that this dark cloud coming at us actually obliges him to now disclose our friendship to all counsel in every mediation we do together. It is the trend among mediators that he feels he must follow.
The problem is this: More and more mediators today feel that they are obliged to disclose any and all relationships he or she has with the lawyers to a mediation. But how far should this go? What, if any, constitutes a personal or professional relationship with a lawyer worthy of mention to other counsel? Does being hired by a lawyer once before to mediate a dispute constitute a professional relationship that the mediator must thereafter disclose? What if the same mediator was hired by the same counsel 30 times in the last two years? Does that give rise to an obligation to disclose the professional relationship? What if the lawyer and mediator litigated for a mutual client in the past and, in the course of their hours at discoveries, they met for lunches to strategize and shoot the breeze? Does that constitute a professional or even a personal relationship worthy of disclosure? What if the mediator and lawyer referred files to one another?
At what point, if any, is a mediator obliged to disclose a professional or personal relationship she has with one of the lawyers to a mediation?
In my opinion, there is never an obligation for a mediator to disclose to the other counsel a personal or professional relationship she has with any of the lawyers to the mediation. And the fact that there is a growing body of mediators who believe they are obliged to make this disclosure is, to me, sad. It is a sad statement on the state of our noble profession.
To raise the requirement to disclose to an ethical obligation is to create a presumption, albeit rebuttable, that the mediator will not act with the highest degree of integrity because she will be biased by her relationship with the other counsel. Lets keep in mind that we are talking about a mediation and not an arbitration or trial.
If we continue down this line, before long, we will reach a point when we will no longer be able to refer to our opposing counsel in Court as “my friend” in fear that someone might presume that our loyalties are compromised by our “friendship” with the opposing counsel.
Counsel select Mediators based on the way they approach difficult situations and the way they tailor their tactics to a variety of clients. A corporate minded litigant may be swayed by appealing to the cost/benefits of pursuing further litigation. A more emotional one may be convinced by reference to the stress-relief of ending litigation. A stubborn client who cannot be reasoned with by counsel can be given a firmer touch by an objective Mediator. Requiring lawyers to utilize Mediators to which they have no prior connection is akin to selecting a random tool for a very specific task. The risk of “bias” is even further mitigated by the fact that Mediators cannot actually issue binding decisions, only attempt to aid the parties to reach a resolution.
Lawyers should be making informed decisions on behalf of their clients and the best information about a Mediator’s prospective personality comes from professional or even personal knowledge of the person. A lawyer’s network is a resource for their clients and lawyers can best select the appropriate third party to mediate based on direct knowledge of that person. Certainly, prior affiliation with a Mediator should not be actively concealed. However, an obligation of disclosing the relationship in each case may act to subvert the Mediation (if it even goes forward with that Mediator) and suggests a lack of faith in all Mediators’ duty of objectivity. We should not assume that Mediators are incapable of separating their personal lives from their professional duties and we must, for the sake of the profession, discourage the disqualification of mediators for the mere perception of bias.
If anything, counsel and parties should presume a relationship between the mediator and the lawyer and recognize the advantages such a pre-existing relationship can bring to a mediation. If a mediator and lawyer, through time have developed a relationship of trust, it is more likely that the mediator’s message will be more effectively received by his friend and colleague than if it were conveyed by an unknown. Similarly, the mediator will know when to trust the lawyer when that lawyer says, for instance, that he is presenting a final offer. As well, a pre-existing relationship will likely keep everyone on their best behaviour.
There are compelling strategic reasons why a mediator or counsel may choose to makesuch disclosure. In each case, the involved counsel and mediator will need to ask whether the disclosure will help or hurt the mediation. In fact, the real question is whether the failure to disclose will hurt the mediation. But the disclosure need not automatically or even necessarily disqualify the mediator. The disclosure should be for the sake of the success of the mediation – not out of some ethical obligation.
I hope this storm blows over soon.
Paul Neil Feldman, B.A., B.Comm., M.B.A., LL.B.
Paul obtained his LL.B. and M.B.A. from the University of Windsor and was called to the Ontario bar in 1989. Paul opened his own commercial litigation practice in 1992 and founded Feldman Lawyers in 1997. Throughout, Paul’s goal has been to provide effective, reliable litigation services to clients at a reasonable cost and with the personal feel of a smaller firm. Paul’s own practice is focused on commercial litigation matters, with a particular concentration on mortgage enforcement, corporate governance and shareholder disputes, and construction litigation. Paul has successfully represented a wide variety of clients for over two decades, including large and small corporations and personal litigants, and has appeared at all levels of the Ontario Courts and at the Federal Court of Canada. Paul also serves on various boards of non-profit corporations.