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A blog by members of the Wake County Bar Association/Tenth Judicial District Bar's Professionalism Committee members.

 

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WHAT YOU DON’T KNOW ABOUT MEDIATION MAY BE AN ISSUE OF PROFESSIONALISM

Posted By Colleen Glatfelter, Thursday, April 27, 2017

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:

http://www.nccourts.org/Courts/CRS/Councils/DRC/Standards/Conduct.asp

The advisory opinions regarding these rules can be found here:

   http://www.nccourts.org/Courts/CRS/Councils/DRC/Standards/Opinions.asp 

 

            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

Tags:  Advocacy  Competence  Ethics  Law  Lawyer  Mediation  Professionalism 

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The Evolving Law of Mediation

Posted By Colleen Glatfelter, Monday, October 20, 2014
Updated: Tuesday, October 21, 2014

By Mark Finkelstein, Partner, Smith Moore Leatherwood LLP
 


The North Carolina Dispute Resolution Commission has recently issued a number of advisory opinions that lawyers in the dispute resolution business should know.

A.     Mediator Testimony

First, The confidentiality provisions of Standard III have been held to prohibit a mediator from testifying regarding statements at mediation even when all parties want the mediator to testify.  Standard III.A states in part that:

“Apart from statutory duties to report certain kinds of information [i.e. juvenile and elder abuse], a mediator shall not disclose, directly or indirectly, to any non-party, any information communicated to the mediator by a party within the mediation process.”

 While the parties may testify regarding the mediation for the purposes of determining whether an enforceable settlement was reached and the mediator may provide his written report of mediation, the mediator may not testify about what happened at the mediation.  Advisory Opinion No. 30 (2014) (comment period ending October 10, 2014).

B.     Limits of Inadmissibility of Statements Made in Mediation

Many lawyers are surprised to learn that there are limits to the rule on inadmissibility of statements made at mediated settlement conferences.  The Dispute Resolution Commission addressed the limitations of G.S. § 7A-38.1(1).  This statute provides:

“Evidence of statements made and conduct occurring in a mediated settlement conference . . . shall not be subject to discovery and shall be inadmissible in any proceeding in the action or other civil actions on the same claim …” 

 

However, statements made during mediation may be used in criminal cases and in civil actions on different claims.  There are also at least four additional exceptions to the inadmissibility of statements during mediation “rule”:

(1)        Proceedings to enforce or rescind a settlement; 

(2)        Proceedings for sanctions regarding the mediation;

(3)        Disciplinary proceedings before the State Bar or the North Carolina Dispute Resolution Commission; and

(4)        Proceedings to enforce laws concerning juvenile or elder abuse.

 Mediators have the duty to define and describe these concepts of inadmissibility, but legal interpretation of these rules is the responsibility of counsel for the parties.  Advisory Opinion No. 29 (2014).

C.     Disputes over Corporate Appearance

Advisory Opinion No. 25 addresses the issue of mediator conduct when a corporate party

indicates that it will be represented by an employee only and not a lawyer.  The opinion indicates that the mediator should act as a neutral facilitator and is not required to police attendance issues.  The mediator should hold the conference and report to the court those individuals who are present at the conference.  The parties can address issues regarding attendance to the court either before or after the mediated settlement conference.

D.    Interlocutory Appeal

What should happen when a case with a mediation deadline is appealed and the appeal may be of an interlocutory order that may not affect a substantial right?  The appeal of an interlocutory order that does not affect a substantial right does not deprive the trial court of jurisdiction.  RPR & Associates, Inc. v. The University of North Carolina – Chapel Hill, et al., 153 N.C.App. 342 (2002).  In such a case, the parties should obtain guidance from the court as to whether the matter is stayed pending appeal, and if they fail to do so, the mediator should obtain such guidance from the trial court.  Advisory Opinion No. 26 (May 17, 2013).

            Conclusion    

The law of mediation is complex and detailed.  The duty of competence requires all lawyers involved in the mediation process to understand this complex and detailed law.  

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*Any opinion or views expressed in blogs posted on this site are those of the identified author and not the Committee as a whole.

Tags:  admissibility  appeal  corporate appearance  ethics  mediation  mediator 

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