In a previous post I noted the work of the ABA Dispute Resolution Section’s Committee on Mediator Ethical Guidance, which interprets the Model Standards of Conduct for Mediators (promulgated in 2005 by the ABA, AAA and ACR).  In that same post, I noted the frequent close correlation between ethical lapses and raw stupidity.

Well, we’ve got another one.

The Committee recently published an opinion that addresses the conduct of a mediator who posted the following on his Facebook page:

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.

The Committee’s formal opinion noted that the public Facebook post “would not be proper unless the mediator had the consent of all parties.”  I’ll say!

(See, that’s why I wouldn’t do well on Committees like this.  Lack the tact.)

Two grounds were cited in support of the Committee’s analysis.  First, Standard II(B), requiring impartiality, was violated by the mediator’s apparent sole concern on “getting” the plaintiff benefits.  Second, the Facebook post violated two subsections of Standard V (confidentiality) inasmuch as (a) it disclosed facts about participants in, and the outcome of, a confidential mediation and (b) it revealed the plaintiff’s sentiments concerning trial, which were presumably communicated during private session.

This is all very well.  But neither of these lapses sent me off my chair.  The one that jumped out at me was the sentence, “I got her $50k.”

My friend, you “got her” nothing.  One party offered, and the other party accepted, $50,000.  And you didn’t “settle the case” — they did.  It wasn’t “your” case, and it wasn’t “your” mediation — it was theirs.

 

F. Peter Phillips is an arbitrator and mediator practicing through Business Conflict Management in Montclair, New Jersey. He is also the Director of the Alternative Dispute Resolution Skills Program at New York Law School where, as Adjunct Professor, he teaches Alternative Dispute Resolution, Negotiation, and International Commercial Dispute Resolution.