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Ethics Shmethics – Can’t I Just Do My Job?. “The parties, former spouses, were referred to court-connected mediation to attempt to resolve issues concerning.

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Presentation on theme: "Ethics Shmethics – Can’t I Just Do My Job?. “The parties, former spouses, were referred to court-connected mediation to attempt to resolve issues concerning."— Presentation transcript:

1 Ethics Shmethics – Can’t I Just Do My Job?

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3 “The parties, former spouses, were referred to court-connected mediation to attempt to resolve issues concerning child support arrearage and unpaid medical expenses for their children. The mediator was selected by counsel for Complainant. Both parties were represented by counsel at the mediation session. “Because of facility limitations that day, some caucuses were conducted in a hallway (with no one nearby who could overhear). The conduct which is the subject of this complaint occurred during such a caucus with the ex-wife (Complainant) and her attorney. The mediator remarked to Complainant (and her counsel) that he didn’t understand what she ever saw in her former husband, and that “…he must’ve had a really big ****.” He further told Complainant that she needed to “start thinking with what’s between your shoulders”. Complainant and her attorney were shocked by these statements, but did not confront the mediator as they were focused on trying to resolve the issues in the case. Complainant felt extremely offended and humiliated by the mediator’s remarks. Complainant was so distressed that her father was called immediately after the mediation session to comfort her. Complainant shared the mediator’s remarks with her ex-husband, the other party at the mediation. Both parties expressed dismay that they were subjected to insulting behavior in a process that the court had ordered them to attend and for which they had to pay. However, there was no indication that the mediator’s behavior affected the outcome of the mediation which resulted in an agreement.”

4 Panel Findings Mediator's comments were derogatory and gave a strong appearance that impartiality had been compromised. Mediator's conduct violated the dignity of the parties and the integrity of the process. Sanction: Because it was the first complaint against the mediator, the conduct did not appear to affect the outcome of the mediation, and the mediator acknowledged that the remarks, if made, were entirely inappropriate, the Committee issued a private reprimand to the mediator and advised that any subsequent misconduct would result in suspension and possible revocation of registration.

5 Mr. Finney “Respondent sent a letter dated December 15, 2004 concerning the mediation at issue to the Honorable Lee Moore, Judge of the Circuit Court for the Twenty-Ninth Judicial District at Dyersburg. The letter included the following language: 'I experienced some problems in this mediation which I feel the court should be aware of… It is my opinion that the … cooperated and acted in good faith. Their settlement offer in light of the evidence presented to me was reasonable. Lastly, I found that the … did not mediate in good faith.” In addition, the letter stated “I told Mr. Graham that he came adamant and so he agreed'” “Respondent drafted a letter to the court and 'requested' the attorney for the defendant to prepare it for his signature.”

6 Finney Panel Findings Mediation is confidential and no court rule permitted disclosure of the information “Having one party to the mediation prepare a letter to the court concerning the mediation and actions of the other party in the mediation clearly suggests an appearance of bias.” Sanction: Mediator suspended for 60 days and may not be reinstated until completes an approved one hour course on mediation ethics, providing proof of completion

7 Mr. Smith In Spring 2006, Mr. Smith was engaged to mediate for Mr. and Mrs. M. The potential sale of their residence was in dispute. Knowing this, Mr. Smith engaged a realtor, to work with Mr. and Mrs. M., possibly resulting in a financial exchange that would benefit Mr. Smith for the referral. Mr. and Mrs. M participated in mediation with a mediator in Mr. Smith’s firm, while Mr. Smith handled intake issues. Mr. and Mrs. M. perceived Mr. Smith to be their mediator as well. Mr and Mrs M. filed a complaint about an unethical relationship between their mediator and their realtor.

8 Mr. Smith Panel Findings Ethical obligations begin with initial intake and communications. “[I]ntake and initial communications also constitute confidential, ethically encumbered mediation communications and ethical obligations begin very early in any mediation process, not just in formal settlement negotiations.” Relationship with realtor was a conflict of interest and created at least an appearance of partiality Mediator was clueless (“lack of complete understanding”) Sanction: Written reprimand and public sanction Minimum of 10 hours of additional mediation training, 3 of which must be mediation ethics, within 6 months after reprimand Retake the court’s online ethics exam following completion of training

9 Dr. Bob was a licensed psychologist and a registered mediator. John and Mary were referred to Dr. Bob through a church marriage counseling program. John and Mary discussed their marital difficulties individually and jointly with Respondent. When the couple stated that their marriage was not salvageable, Dr. Bob gave them the choice of using him as a psychological evaluator for the counseling program or as a mediator of their divorce, but not both. The couple agreed to mediation. Shortly after the initial meetings with John and Mary, Dr. Bob tested the couple’s young son for some educational problems. The testing was at the request of Mary. A month later Dr. Bob conducted mediation with Joan and Mary, continuing for two sessions and resulting in an agreement that John alleged was full of mistakes and was therefore never executed. Afterward John expressed dissatisfaction with the mediation and accused Dr. Bob of showing prejudice for Mary. John also alleged that Dr. Bob spent an extra hour “counseling” Mary alone after the second mediation session ended. Dr. Bob explained to the grievance board that the meeting was merely a caucus with Complainant’s wife after an hour-long caucus with John, and that no counseling was provided. A short time later, Mary asked Dr. Bob to provide counseling to her two children. Dr. Bob did provide some counseling to the children. Four months after the mediation, Mary called Dr. Bob to testify in a hearing for a motion she filed. Dr. Bob voluntarily testified. The court questioned Dr. Bob’s credibility and competence, to which Dr. Bob responded by filing an eight page affidavit with the court describing John’s uncooperative and disruptive behavior during mediation.

10 Dr. Bob Panel Findings Multiple relationships with a party, creating a conflict of interest Appearance, but not actual, partiality Violation of confidentiality Incompetence Based on Dr. Bob’s extensive training and listing on three mediation rosters, the grievance panel found these violations to constitute “gross incompetence” and Dr. Bob was removed from registration on all court ADR rosters throughout the state

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12 Photo Credit Stuart Miles freedigitalphotos.net

13 Time for Art Class (Or Engineering, if you prefer)

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15 On October 30, 2013, Melvin Whassup, JD met with John and Mary Spark to help them discuss the dissolution of their marriage. No divorce proceeding had yet been filed. The meeting lasted two hours and Melvin charged each party $300. The process ended without any agreement being reached. Two weeks later Melvin ran into Mary at a community function. They talked together during the function and discovered that they had many interests in common. Mary kept in touch with Melvin after that, asking him questions about the legal process, which Melvin answered. With the information from Melvin, Mary filed a complaint for divorce. After Mary filed, John contacted Melvin, asking to “try mediation again.” Melvin advised John that because a friendship had developed with Mary he could not act in the capacity of a mediator. He encouraged John to consider Mary’s “reasonable” requests. John’s response was to say “What and then file a mediation grievance. In responding to the grievance, Melvin admitted talking to the couple but denied ever conducting mediation with John and Mary.

16 Maggie Smee, a certified mediator, was mediating a workplace dispute involving an employee, Bill, and his supervisor, Harriet. Maggie had never met either party before the mediation. During caucus Harriet asked Maggie if she was related to Reginald Smee. It turned out that Harriet and Reginald, who was Maggie’s cousin, had been close friends since high school. Maggie hadn’t seen Reginald in 20 years and had no contact with him, since Facebook was Maggie’s only regular link to family and Reginald was religiously opposed to the social medium. Maggie immediately paused the mediation and disclosed to Bill that there was a potential conflict of interest. Maggie explained that she didn’t have much of a close relationship with Reginald and believed she could continue to be impartial during the mediation process, but that she would withdraw if either party objected to her continuing. After discussion, each party agreed to have Maggie continue as the mediator. Maggie put in writing that she had disclosed the potential conflict of interest, and each party signed it with their written consent to continue. The mediation continued and the parties reached an agreement. Subsequent to the mediation, Bill decided he was dissatisfied with the agreement and concluded that Maggie had been “on Harriet’s side” because of her relationship with “that cousin.” He complained to everyone he could think of until he found the mediator certification board which convened a panel.

17 Commit Yourself Today


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