Suppose you are mediating a divorce in which the wife agrees to accept 25% of the community assets in settlement even though a court would award her 50%. She wants the matter concluded as quickly as possible in the worst way and so will accept anything to be done with it.
Or you are mediating a breach of contract lawsuit in which the parties agree that the defendant will make monthly payments on a compromised amount that is less than the actual amount owed, but should she default, she will owe five (5) times the original amount owed.
Or you are mediating a wrongful termination employment case and as part of the settlement, the former employee agrees not to compete for 10 years with her former employer.
As the mediator, do you remain silent as the parties agree to these deals, or do you speak up and say something in the name of fairness?
Standard I of the Model Standards of Conduct for Mediators entitled “Self-Determination” provides that “self-determination is the act of coming to a voluntary, un-coerced decision in which each party makes free and informed choices as to process and outcome.” But it also allows the mediator “… to balance [override] such party self-determination with a mediator’s duty to conduct a quality process….”(A.1)
Note that self-determination involves making an “informed” choice. That is, a party makes the decision after knowing all of the relevant facts and circumstances, both favorable and unfavorable, including the benefits and risks. (California Rules of Professional Conduct 1.0.1(e ))
The next standard-Standard II- requires the mediator to remain impartial and thus free from favoritism, bias or prejudice.
Standard IV requires the mediator to be competent which includes having the necessary training and experience in mediation among other things to mediate effectively.
And then there is Standard VI- Quality of Process. Among other things, it notes that while mixing the role of a mediator with another profession is problematic, the mediator “… may provide information that the mediator is qualified by training or experience to provide, only if the mediator can do so consistent with these Standards.”(A.5.)
But, at the same time, this standard (A.10) also states that if a party “… appears to have difficulty comprehending the process, issues or settlement options, … the mediator should explore the circumstances and potential accommodations, modifications, or adjustments that would make possible the party’s capacity to comprehend, participate and exercise self-determination.”
So, in the first example, should the mediator advise the wife what she would be awarded by a court so that her “self-determination” is “informed,” or does she remain silent since it is the wife’s decision? Does the mediator become “partial” by providing such “information” or is she merely making an “accommodation”?
Or, in the second example in which the mediator knows that such liquidated damages are clearly illegal (No court would ever condone a payment of five times the original amount), should the mediator stay something or again stay silent since the governing principle is self-determination? Again, to ensure self-determination, should the mediator provide the “information” so that the party’s decision is an “informed” one? Or is the mediator violating “impartiality” by doing so?
And likewise in the final example. The mediator knows the non-compete clause is clearly void as against public policy. Should the mediator remain silent since it is the parties’ dispute, and they know better than the mediator? She has training and experience to provide the information, but again, is she breaching impartiality by doing so, or merely providing an accommodation so that the party is making an “informed” decision?
Some mediators are concerned with substantive fairness and the issues I have raised. They would raise the issues I have mentioned. Others would remain silent believing that “substantive fairness” is not their concern. Rather, as long as they have provided a procedurally fair process, they have done their jobs. What do you think?
… Just something to think about.
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