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Mediation Foul: New Rules for the Rulemakers

By: Timothy D. Riley

As with most trial lawyers, over the past few years a substantial part of my practice has been devoted to participation in mediations, some voluntary and some far less voluntary. For the most part, the mediation process has proven successful, as well as being relatively enjoyable and non-contentious.

Likewise, a good number of the mediators I have been exposed to have been professional and sensitive to the concerns of the clients and the lawyers. From that group, over the years I have developed a list of "preferred" mediators, whom I suggest to opposing counsel or the courts when the issue arises. While success in achieving settlement is my main criteria for placing a mediator on my list, a criteria of almost equal importance in my mind is a mediator who will make my client feel comfortable and who will respect the relationship between my client and me.

As mediations have become more and more common, they have become, unfortunately, increasingly formulaic. I do not blame the mediators alone for this devolution in the process. Instead of going into mediations as a process to bring the parties to an understanding of the position of the opponent and ultimately resolution and closure, the mediators and the advocates all more and more seem to come to mediations prepared to do nothing more than enter into a marketplace haggling event with a third party facilitator. Coming to a monetary settlement before the late evening hours seems to be the almost exclusive goal of everyone involved.

Mediation as a process has no formal statutory rules, other than a strong rule of confidentiality. Because of the breadth of the confidentiality protection, there can be no civil liability for any verbal conduct during a mediation, nor does it appear that an attorney can be subjected to disciplinary proceedings for anything that might be said or done during the procedure. As a result of the combination of the protected atmosphere and the parties' and mediator's overwhelming motivation to move the parties toward a monetary resolution as quickly as possible, I have seen a willingness of some mediators, co-defense counsel, and various other representatives to make what would otherwise be highly inappropriate and arguably tortious comments directly to the parties.

For example, I have had otherwise ethical lawyers persuade mediators to call my insurance representative out of our session room to try to persuade the representative why my advice was wrong. I have seen mediators pull various clients aside and tell them that they need independent counsel. I have seen mediators, other lawyers, and insurance representatives for other parties attempt to provide legal advice to my client or his insurance carrier.

To put pressure on the insurer, I have too often heard mediators attempt to drive a wedge between the insurer and its insured or the lawyer and his client. In doing so, I have noticed that the level of knowledge held by mediators about insurance law and the attorney-client relationship is often appalling antiquated.

Mediation should be a time at which the parties and their lawyers, insurance representatives, and an objective third party mediator sit down to see whether a suit can be resolved peaceably, amicably, and professionally. The mediation process was statutorily designed to be uniquely non-adversarial and non-threatening to the parties. The parties should reason together, to try to reach a justiciable resolution of the case.

Each of the parties in a mediation has a role. It is counsel's role to represent his or her client diligently and zealously within the bounds of the law. That includes protecting the client from undue pressure, embarrassment, and unrepresented contact by one with opposing interests.

By statute, the mediator's role is solely to encourage and assist the parties in reaching a settlement of their dispute. It is not the mediator's role to provide legal advice or assistance to any of the parties at the mediation, nor is it appropriate to do so. Moreover, it is inappropriate, unprofessional, and arguably tortious (were mediation not a privileged event), for a mediator to interfere in the relationship between the attorney and his client, or between an insurer and its insured.

Each mediator has a set of rules by which his or her mediations will be conducted. The purpose of the mediator setting out these rules is so that the parties can know the guidelines by which they are expected to conduct themselves during the mediation. By knowing the rules, the parties are reasonably expected not to do something inadvertently that is inconsistent with the mediator's role and goal.

The mediator's rules tend to be quite reasonable and are usually respected by counsel and the parties. From counsel's perspective, there are certain other common-sense rules that should be followed if counsel is to be able to carry out his or her role successfully as an attorney for the client as required by law. Those rules also need to be articulated so that the ethical guidelines of counsel in consenting to and continuing in a mediation are also well understood and not inadvertently broken by the mediator or others in a fashion that interferes with the attorney-client relationship.

With that, I have developed the following rules for my client's and my consenting to and continuing to participate in a mediation:

Riley's Rules for Counsel Mediation Participation

1. During the entire mediation process, I will remain as my client's lawyer, advocate, protector, and advisor. I am the only person there exclusively to protect my client's interests, and my client is counting on me to do my job. My client and I have a time-honored, valued, and constitutionally-protected attorney-client trust relationship, which must be respected. Accordingly, I will not tolerate the mediator or anyone else attempting to interfere, directly or indirectly, with the attorney-client relationship I have with my client. Therefore, under no circumstances will I tolerate:

a) the mediator speaking to my client about any aspect of the case or the mediation outside of my presence;

b) my client being addressed separately by counsel representing other parties, or directly by another party to the suit or claim, or by an insurance or other representative of another party;

c) any comments by the mediator or others to my client with regard to how I am carrying out my job as my client's lawyer;

d) any comments by the mediator or others as to whether my client should have separate, different, or additional counsel; or

e) the mediator soliciting my client for business during the mediation, directly or indirectly.

2. The mediator is free to give his or her opinions as to legal issues. However, under no circumstances will I tolerate the mediator providing legal advice to my client.

3. If my client is insured and is represented by an insurance representative at the mediation, I will not allow the mediator to attempt to interfere in the relationship between the insurer and its insured.

4. If the mediation involves my representing an insured defendant in a case in which I was retained by the carrier, it is the interim position of the American Law Institute that I may also have an attorney-client relationship with the insurer, although it is subordinated to my attorney-client relationship with the insured. Accordingly, since the insurance representative may be my client, all the rules with respect to "my client " above will apply with equal force to any insurance representative of my client present at the mediation.

5. Mediation is not a trial or an inquisition. Thus, I will not allow the mediator or opposing counsel to embarrass or potentially do damage to my client's case by asking questions of the client in the opening session, if the client has made it known they prefer to speak solely through counsel. Neither will I allow the mediator or anyone else to cross-examine my client in the opening session or during any closed session.

6. During the closed sessions, unless invited by me, the mediator will not be allowed to ask my client directly to make an increased offer, if a defendant, or to reduce his or her demand, if a plaintiff. The client deserves to be insulated by counsel from being unduly pressured by others into changing his or her settlement position. The mediator can certainly explain directly to the client the mediator's rationale as to why the offer should be increased or the demand reduced, and attempt to persuade the client that a prior position should be reconsidered. However, insofar as making a response, that will come solely through me, as my client's lawyer, after I have had a chance to discuss the best response privately with my client outside the mediator's presence.

7. Separate meetings between or among the mediator and counsel outside the clients' presence understandably tend to make clients anxious and suspicious. Accordingly, they should be kept to the bare minimum necessary to achieve the purpose.

8. My client and I are deserving of (and have paid for), the exclusive time and attention of the mediator, just as the mediator is entitled to same from the participants. Thus, I will not agree to participate in a mediation in which the mediator is attempting to conduct another mediation at the same time.

9. The time of the parties, the insurance representatives, and the lawyers is equally valuable as that of the mediator. Accordingly, if I should learn that the mediator has been spending significant lengths of time attending to matters other than the mediation currently in session, my client and I will leave.

10. If my client has considered all aspects of proceeding to trial and has decided that he or she does not want to settle the case, that decision will be respected by the mediator and by me.

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