One reason given by the Chicago Bankruptcy Court for the recent revocation of its Local Mediation Rules is this:
–Several Judges in the Chicago Bankruptcy Court have agreed to mediate cases for their colleagues on that Court.
The pickle is this:
–such intra-court mediator appointments create a conflict of interest.
This conflict issue comes into focus for me, one day, when I hear a bankruptcy judge (not from Chicago) describing an “uncomfortable” situation as mediator. The uncomfortable situation is this:
–This judge received the mediation appointment from a judge who serves in the same court.
–One mediating party speaks negatively about the “quality of justice” in the court where both judges serve.
–Because of that comment, “I have to excuse myself” for a moment, the mediator/judge explains, because of being “tempted” to make an “imprudent” retort.
Now . . . that’s a problem.
–A mediating party must be able to speak freely about any quality-of-justice concerns in the court that will be deciding the dispute.
–What is the risk that the trial judge might “get it wrong”? Surely this is fair game for discussion during a mediation!
–If such a comment is so bothersome to the mediator that stepping-away to cool-down is necessary, that’s a disqualifying bias.
–Or, at least, the judge/mediator needs to disclose such sensitivity so the parties know they need to dance carefully around this.
Or what if the mediator/judge thinks a party is unreasonable during a failed mediation?
–Will the appointing Judge hear about it and hold it against that party at trial?
Or what if the mediator/judge views an attorney’s conduct in the session as in defiance of the mediator/judge’s point of view?
–Will the defiant attorney need to be concerned about a grudge surfacing at the attorney’s next appearance before the mediator/judge in another case?
These circumstances and concerns present serious conflict of interest concerns. Such concerns fall into this category for mediating attorneys:
“How might the mediator hurt me?”
Such concerns are unacceptable.
Moreover, it seems that such a conflict should not be subject to waiver. How would a waiver conversation go? Something like this, perhaps:
“I’m about to appoint my colleague, Judge XXX, as mediator for your dispute. You need to know that Judge XXX is a little sensitive to pejorative comments about our Court. So, if anyone wants to object to this appointment, speak now or forever hold your peace.”
Yeah. Right. That’ll be effective.
These types of circumstance require a mediating party to factor extraneous considerations about the mediator into mediation strategies. And such circumstances are an impediment to a free and full mediation process.
These are precisely the types of concerns that conflicts rules are (or should be) designed to address and prevent.