By Abby Tolchinsky and Ellie Wertheim
September 7, 2007
It comes as no surprise to practitioners that, in a great many areas of the law, litigation has been overwhelming the courts’ dockets. Mediation programs have proved an effective way to provide relief.
These run the gamut from court-mandated programs such as in the U.S. District Court for the Eastern District of New York to programs such as Judicial Arbitration and Mediation Services Inc. (JAMS). The mediators themselves may be court employees such as magistrates, paid attorneys or retired judges, all of whom have significant experience and training in a given area of the law.
Since the majority of the mediators providing services in the various mediation programs are attorneys, a variety of issues arise out of the interplay between these dual roles.
Neutral Mediator Shifting Roles
This article will address the circumstances under which a neutral mediator may shift roles and then serve as an advocate for one of the parties to the mediation, as well as when an attorney can also serve as a neutral mediator.
Shifting between these two roles necessarily raises questions surrounding confidentiality in mediation. Specifically, how does information ascertained through mediation advantage or burden each of the parties when their advocate shifts to serve as their mediator, or vice versa?
Openness and freedom to express one’s interests and concerns are the very linchpins of communication in the mediation process. It is standard practice that what transpires during a mediation, regardless of the setting, and regardless of any subsequent action, remains confidential. Any violation of this near-religious prohibition on disclosing information revealed in mediation is subject to sanctions.
Bernard v. Galen Group, involves an application for a preliminary injunction in federal court in a patent, copyright and trademarks case. Defendants’ counsel requested sanctions, alleging that the plaintiffs violated the confidentiality of the court-ordered mediation sessions. In granting sanctions, the judge relied on a previous U.S. Court of Appeals for the Second Circuit decision discussing the importance of confidentiality provisions:
If participants cannot rely on the confidential treatment of everything that transpires during [mediations] then counsel of necessity will feel constrained to conduct themselves in a cautious, tight-lipped, noncommittal manner more suitable to poker players in a high-stakes game than to adversaries attempting to arrive at a just resolution of a civil dispute.1
The Administrative Dispute Resolution Act (ADRA), 5 USCA 574 (1996), mirrors this theory of openness and confidentiality in mediation, while including a section outlining its protections and the limitations. The intent behind this section illuminates the extent to which confidentiality in the mediation process, while essential, must be balanced against the need for fair and open discovery should any subsequent litigation be necessary. Otherwise, confidential information garnered in mediation may be obtained through the regular channels of discovery. The legislative history, at S. Rep. 101-543, S. Rep. No. 543, at 3941, 101st Cong., 2nd Sess. 1990, provides that:
These protections are created to enable parties to ADR proceedings to be forthcoming and candid, without fear that frank statements may later be used against them …. At the same time, these confidentiality provisions are not intended to frustrate normal discovery in legal proceedings.
Statute: ‘Can’t Switch Hats’
The effect of this statute in practical terms is that once you have served two parties to a dispute, as their neutral mediator, you cannot then switch hats and serve as an advocate for one side. Indeed, the Code of Professional Responsibility E.C. 5-20 (McK.Consol. Laws, Book 29 App, 2007), specifically proscribes the switch: “A lawyer who has undertaken to act as an impartial arbitrator or mediator should not thereafter represent in the dispute any of the parties involved.” Having witnessed open negotiations between the parties, having facilitated discussions and assisted in analyzing a range of relevant data and documents, it is presumed that the mediator’s vast range of knowledge as to the strengths and weaknesses of each side’s case must remain confidential and cannot then be used as a sword against one side.
In cases where switching roles from mediator to lawyer have been tested, courts have consistently issued sanctions or disqualified counsel, generally noting the necessity of protecting confidentiality during the mediation process. For example, in Fields-D’Arpino v. Restaurant Associations Inc., 39 FSupp2nd 412 (SDNY 1999), the court held that a law firm and a particular lawyer who previously mediated a dispute between the parties are disqualified from representing one of the parties to the mediation in a subsequent court proceeding where the attorney attempted to use information learned in the mediation as testimony against the other party.
The prohibition against revealing information learned in mediation, however, is not without limitations. The ADRA incorporates an exception, allowing for instances in which parties may draft mediation agreements that deviate from the statutory requirements of near-absolute protection of information learned in mediation, so long as the neutral mediator is informed of the agreement prior to the commencement of the mediation. Additionally, if the parties decide on alternative confidentiality procedures after they have begun the mediation process, that agreement does not bind the mediator.2 Essentially, before a mediator can disclose information in a subsequent court proceeding, the mediator must provide notice to all affected parties and nonparties. They, in turn, have the opportunity to contest lifting the veil of confidentiality.3
Confidentiality agreements between parties to a mediation can be drawn as an extra layer of protection, adding further limits to discoverable evidence in a subsequent court proceeding and will likely be upheld. In DeLuca v. Allied Domecq Quick Service Restaurants 2006 wl 2713944 (EDNY), the court held that the statement in question would not have been excluded under the ADRA because, it reasoned, the statement made in mediation would have been admissible as the basis for a subsequent retaliation claim, unrelated to the initial age discrimination claim. However, the parties’ separate confidentiality agreement stated that “all matters discussed in the mediation are confidential … and cannot be used as evidence in any subsequent … judicial proceeding” and drew a narrow exception to confidentiality only on the basis of imminent danger or violence.
Switching roles from mediator to attorney may, in exceptional circumstances, be permissible. In matrimonial law, for example, mediator confidentiality may, in part, be cast aside. While the matrimonial mediator begins the relationship with the parties by facilitating a negotiation regarding financial and parenting decisions, at the close of the process, in order to obtain a divorce based on their mediated agreement, documents need to be filed in court, with the parties assuming the roles of plaintiff and defendant. In an ethics opinion, NY Eth. Op. 736, 2001 WL 670915 (N.Y. St. Bar Assn. Comm. Prof. Eth.), the Committee on Professional Ethics reasoned that “an attorney-mediator may prepare divorce documents incorporating a mutually acceptable separation agreement and represent both parties only in those cases where mediation has proved entirely successful, the parties are fully informed, no contested issues remain, and the attorney-mediator satisfies the ‘disinterested lawyer’ test of DR 5-105 (C).” However, the committee also warned that, because the “disinterested lawyer” test is a difficult one to meet, the mediator must not presume a lack of conflict at the outset of a mediation. Rather, the mediator may offer to serve as the filing attorney only on a case-by-case basis depending on whether “the parties are firmly committed to the terms arrived at in mediation, the terms are faithful to both spouses’ objectives and consistent with their legal rights, there are no remaining points of contention, and the lawyer can competently fashion the settlement agreement and divorce documents.” Thus, even where switching roles from mediator to attorney is permitted, the threshold is high and the circumstances are narrowly drawn.
There is significantly less guidance from the courts as to what procedural and ethical restrictions apply for a lawyer changing roles to serve as a neutral mediator between his (former) client and another party. Of course, all information gleaned in the course of his representation of his client is confidential. But how does that impact the attorney/mediator’s ability to be neutral? What is the effect on the clients, one of whom is experiencing a shift in the relationship from advocacy to neutrality, the other of whom is entering into a new relationship with the mediator, knowing that the other side already divulged confidential information?
At a minimum, there must be a conversation among the mediator and the parties regarding the fact that there was a pre-existing attorney-client relationship. Furthermore, a conversation about the scope of confidential information and the use, if any, of prior disclosures, needs to be considered fully by all sides. Finally, an agreement among the parties and the mediator must be memorialized in a detailed waiver designed to protect the attorney/mediator from being embroiled in potential subsequent litigation. Unlike the prohibition against mediators subsequently serving as attorneys, the Code of Professional Responsibility, EC 5-20, allows that “A lawyer is often asked to serve as an impartial arbitrator or mediator in matters which involve present or former clients. The lawyer may serve in either capacity after disclosing such present or former relationships.”
It is worth noting that in at least one mediation model, the caucusing model, the mediator has ex parte conversations with each side. While these conversations are meant to facilitate the negotiations and settlement, they generally involve the mediator learning from each side information such as weaknesses in their case or negotiation strategy. The mediator, upon request of the party, maintains the confidentiality of these ex-parte communications. In this regard, the mediator who practices under the caucusing model faces similar circumstances to an attorney who then becomes a neutral mediator. Both must protect confidential communications while working to facilitate an agreement that each party considers fair and reasonable in their view of the conflict.
Abby Tolchinsky and Ellie Wertheim are partners at Family Mediation.
1. 901 FSupp 778, 784 (SDNY 1995), quoting Lake Utopia Paper Ltd. v. Connelly Containers, Inc., 608 F2d 928, 930 (2d Cir. 1979).
2. 5 USCA 574 (d)(1).
3. 5 USCA 574 (e).