What’s a Mediator To Do When Parties Seem Unaware of an Important Rule of Law?

By: Donald L. Swanson

The title of this article is the subject of an advisory opinion from New York’s Mediator Ethics Advisory Committee. 

What happened

An attorney and client are mediating a fee dispute.  The mediator realizes the parties’ fee dispute is covered by a New York law requiring the attorney to notify the client of a right to seek arbitration of the fee dispute.  Both the attorney and the client seem unaware of this law.

–Question

So, the question is this:  Does a mediator have an obligation to say something to either party about the arbitration law?

–Pause and Consider

The answer is this: the mediator must pause and consider how important the lack of awareness (or the appearance thereof) may actually be.

Summary

Here’s a summary of the Committee’s opinion:

• The mediator has no obligation to say anything to either party about the arbitration law; but
• If the mediator deems such information important, the mediator may raise the matter in joint session.

The Law

Here’s what the law in question provides:

“In the event of a fee dispute between attorney and client, . . . the client may seek to resolve the dispute by arbitration . . . [which] shall be mandatory for an attorney if requested by a client.”

Rationale

It is not the mediator’s role to notify either party of the law.

• Imposing an obligation on the mediator to disclose the law could: (i) interfere with a party’s right to self-determination, (ii) interfere with a party’s right to make his or her choice as to the process and outcome, or (iii) conflict with the mediator’s obligation to refrain from acting in any other professional role but that of a mediator.
• A mediator is required to support the principle of party self-determination in both process and outcome, which means that a mediator should not intervene in the decisions of parties who have agreed to mediate a dispute.
• However, a mediator may need to balance party self-determination with a duty to conduct a quality mediation process by suggesting that the parties seek outside professional advice.
• Requiring the mediator to inform the parties about the law could violate the mediator’s obligation to refrain from acting in an advisory role: mixing the role of mediator and adviser is problematic, so mediators should distinguish between such roles and refrain from providing professional advice.

Informing the Parties

How should the mediator inform the parties to seek outside advice, if he or she decides to do so?

It should be done, the Committee says, in joint session and by asking questions as to whether the parties know if there are any laws or precedents that might impact the disposition of a fee dispute, without specifically referring to the law.

The Committee debated whether the mediator should specifically mention the law or simply inform the client that she may want to seek outside legal advice.

Committee’s Conclusion & Caution

The Committee concludes and cautions with the following:

• the mediator may let the parties know about the law but is not obligated to do so;
• the mediator must draw a clear distinction between providing legal information and legal advice; and
• the mediator must not either, (i) leave the impression that the law applies, or (ii) interpret the law for the parties’ particular dispute.

Editorial Comment

The Committee’s analysis, struggle, conclusion and caution seem too persnickety.  Here are some reasons why.

For starters, the Committee assumes the parties don’t know about the arbitration law.  That assumption may be faulty.  Arbitration can, for example, be an expensive and time consuming process, which parties often want to avoid.  Or, perhaps, the parties simply prefer a self-determination approach over a result imposed by someone else.

If the mediator is truly troubled by the situation, a quick question in joint session like this could solve the problem:  “I assume you’ve all considered the arbitration law and are ready to move forward anyway?”  If the educator receives troubled / confused looks in response, that would be the time to suggest independent legal counsel.

Another approach, if the mediator is truly concerned, would be to ask the attorney, in private session, if notice has been given.  If yes, confirm with the other party.  If no, proceed with a joint session discussion.

Suggesting that the parties seek independent counsel, without providing context for the suggestion, is likely to cause confusion, unease and distrust—and won’t resolve anything.

Conclusion

The Committee provides an interesting and thoughtful opinion.  It might be helpful, however, to focus more on practicalities and less on technical purity.

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