From FOB’s Kristen Blankley and Erin Archerd on the really interesting work of the ethics committee–good example to use in class too!

Is writing about your practice online a bad idea?  What cautions should neutrals consider or what limits should neutrals place on their discussion of sessions and clients on the Internet?

The ABA Dispute Resolution Ethics Committee met in July to discuss ADR ethics and social media, using as jumping off point the ABA DR Ethical Guidance Committee’s decision regarding a mediator’s online posting about a recently completed mediation.  You can read the Committee’s full decision here:  http://apps.americanbar.org/dch/committee.cfm?com=DR018600&edit=1 (As a side note for educators, these ethical guidance opinions are a great source for hypotheticals and exam questions.)

The mediator’s post read: “Whew! Just settled my first Superior Court civil mediation. A case involving a non-English speaking elderly client, who really really didn’t want to have to go through trial. Possible jury verdict could have been zilch to around $80k. I got her $50k.”

In crafting their opinion, the Committee on Mediator Ethical Guidance initially focused on the confidentiality issues raised by the post, but upon further reflection issues of impartiality came to the fore.  The Ethics Committee agreed that such postings raised impartiality issues, but quickly found themselves pondering a broader question – what kind of posting is appropriate by a neutral about a session? – and a more specific question – is there something neutrals can include in their disclosures to clients that covers posting on social media?

There was a broad range of comfort levels among the committee with posting on social media.  While most members agreed that the post featured in the Ethical Guidance crossed the line ethically, most members thought a more neutral posting, e.g. “mediated settlement in alleged personal injury in ridesharing complaint,” was ethically acceptable.  Still, several members of the committee found the practice of posting about sessions commercially, if not ethically, risky, even with more neutrally worded posts.

What consumed a greater part of our discussion was whether a neutral’s use of social media posts were something that should be included in disclosure forms.  Some neutrals include a disclosure about their use of social media sites such as Linked In.  For example, Ruth Glick uses the following social media disclosure:

I use a number of online professional networks such as LinkedIn and group email systems.  I generally accept requests from other professionals to be added to my Linked In website but I do not maintain a database of all these professional contacts and their connections which now number over 500.  Linked In also features endorsements, which I do not seek and have no control over who may endorse me for different skills. The existence of such links or endorsements does not indicate any depth of relationship other than an online professional connection, similar to connections in other professional organizations.

In considering whether to endorse or allow others to endorse us on Linked In, the committee members took a variety of approaches.  One member commented that you can turn off endorsements if you want to avoid any appearance of partiality through endorsements.  Another member mentioned that allowing someone to endorse you allows that person to see your own contact list, which may not be desirable.  One family mediator on the committee frequently found herself declining to endorse parental advocacy groups on Linked In.

We also considered what sort of exceptions to confidentiality ought to be used when portions of real-life sessions will be discussed for research, teaching, or reflective group purposes.  Prof. Susan Exon (University of La Verne College of Law) gave an example of language used by a local agency at which she placed student mediators, which initially appeared to effectively block any substantive discussion of mediations among her Mediation Practicum students.  She proposed, and the agency accepted, some additional language (underlined below):

The mediations that the Student Mediator observes, participates in, or conducts shall remain private and confidential, and the Student Mediator shall maintain the confidentiality of all information obtained by the Student Mediator during the course of any such mediation. The Student Mediator shall not discuss any mediation that they observe, participate in, or conduct, including but not limited: the subject matter of the dispute; the parties’ positions, attitudes, or negotiating strategies; the outcome of the mediation; or the mediator’s impressions about the parties, their positions, attitudes, or behaviors, or the outcome of the mediation with sufficient particularity to allow a non-participant to the mediation to identify the parties or dispute being discussed. The Student Mediator shall also seek to ensure that the parties to the mediation understand and agree to maintain the confidentiality of the information they obtain in mediation. The obligations of confidentiality contained in this paragraph apply both during and after the time period of the Practicum.

We are curious about what language others have seen about what can or cannot be disclosed about a mediation and to whom.  This issue will only become more salient as more mediators turn to reflective practice groups in order to continue to develop their mediation skills well past mediator’s initial training periods.

The Ethics Committee will be sponsoring a panel on mediator disclosures for the 2017 ABA Dispute Resolution Conference and we would love to hear your thoughts or questions you have been considering regarding disclosures.  Please reach out to Kristen Blankley ( Kristen.blankley at unl.edu) and Erin Archerd (archerer at udmercy.edu) or comment below with thoughts.

Andrea Schneider is a professor at Marquette Law School teaching ADR, Negotiation, Ethics, International Law, International Conflict Resolution and Art Law. She is the author or co-author of numerous books and book chapters in the field of dispute resolution. She serves as the editor of ADR Prof Blog.