By Mark Finkelstein, Smith Moore Leatherwood LLP
The two largest changes in civil litigation over my 30 years of practice are the advent of mediation and the proliferation of electronic communications. Much has been written about professionalism and E-communication. Not enough has been written about professionalism and mediation.
Lawyer mediators must comply with both the Rules of Professional Conduct and the Standards of Professional Conduct for Mediators. Advisory opinions are issued under both of these sets of rules. Even if you are not a mediator, your duty of competence as a lawyer requires you to have some familiarity with the rules that apply to mediators if you mediate.
The rules applicable to mediators can be found here:
The advisory opinions regarding these rules can be found here:
You may be surprised to learn that:
1. A mediator may not distribute something as small as “mouse pads with contact information thereon to existing or potential clients” with the hope of receiving referrals. Advisory Opinion 33 (2016).
2. In a case where one party is represented by counsel and one is pro se, the mediator may not prepare the mediated settlement agreement for the parties to sign. Under those circumstances, when the mediated settlement agreement is prepared by the represented party, the mediator must raise questions with the parties if the agreement does not include terms discussed in the presence of the mediator or are misstated. Advisory Opinion 31 (2015).
3. Mediators are required to define the separate and distinct concepts of confidentiality (typically, unless agreed to otherwise, a party to a mediation can issue a press release describing the events of the mediation because a mediation is not confidential) and inadmissibility (typically statements made during mediation are not admissible at trial). Advisory Opinion 29 (2014).
Given that a significant percentage of cases are mediated prior to disposition, lawyer-advocates must be competent at mediation. Giving due consideration to a strategic approach to mediation and properly preparing for mediation are the keys to mediation competence.
Prior to mediation, you should discuss with your client the mediation process itself, possible opening settlement offers, information you want to seek during mediation, your client’s best alternative to a negotiated agreement, and your client’s role at mediation. Your opening statement should also be considered. Sometimes the best approach at mediation is to forgo an opening statement. Sometimes the best approach is to bring an expert to the mediation and have him narrate a detailed PowerPoint presentation. Between these two extremes in opening statement presentations are many other reasonable options. Even though there are many potential right answers, due consideration to the proper approach to each aspect of mediation is always important.
*Any opinion or views expressed in blogs posted on this site are those of the identified author and not the Committee as a whole