June 17, 2024
Clients and counsel must behave ethically when participating in a mediation. In a mediation, a party or their counsel may display varying levels of aggression. But personal attacks on adverse counsel and other such disparaging conduct only frustrates the mediation process and may hinder the ability to achieve the main goal of a mediation in reaching a settlement.
The parties in a mediation are entitled to be treated with respect, civility, and without any form of intimidation or coercion. It is the duty of mediators to ensure that each party is acting ethically and within these guidelines. For instance, Standard VI of the ABA Model Standards of Conduct for Mediators requires that “[a] mediator shall conduct a mediation … in a manner that promotes … safety … party participation, procedural fairness … and mutual respect among all participants.” The AAA adheres to the ABA’s standard and JAMS has similar standards. Overall, the mediator is required to implement these standards within the mediation to ensure the fair process of a mediation and to avoid impartiality.
To read more about the AAA and ABA standard, click here. [1]
To read more about the standard set my JAMS, click here. [2]
Examples of client or counsel conduct that may not comply with the standard of treating one another with respect, civility, and without any form of intimidation or coercion include:
- Conduct that is aggressive, such as overpowering or belittling speech that attempts to “bully” the other side.
- Ad hominem statements attacking the personal characteristics of the opposing party
- Bringing up unfair arguments about a part’s past or unrelated behavior not at issue in the mediation.
- Antagonistic body-language, such as pounding the table when upset or dramatically getting up and threatening to leave.
Here are some precautions and practical solutions to prevent or deal with unethical client or counsel misconduct:
- Before the mediation, ensure that the mediator understands and recognizes the mediator’s duty to safeguard the integrity, mutual respect, and the parties’ right to be free from intimidation in the mediation process.
- Ensure the mediator has consulted with both parties before the joint session to understand the history and behavior of both the parties and their counsel.
- Ask the mediator to address the importance of all parties and counsels participating respectfully and professionally within the mediation in the mediator’s opening statement.
- If unethical conduct has arisen, ask the mediator to speak with the offending party in an independent caucus.
- In egregious circumstances, the mediator can terminate the session due to a party or counsel’s misconduct, or the client can request the mediator to adjourn the session because of the other party’s inappropriate conduct.
It is crucial for counsel to prepare their clients for mediation proceedings by educating them on the ethical conduct expected during the session and informing them of the actions they can take if someone else is compromising the fairness of the mediation.
To read how CASTAYBERT PLLC can assist you with mediation matters, click here [3].