Mediator Ethics: Who Cares?

Texas has ethical rules for mediators.

They were promulgated by the Texas Supreme Court in June, 2005.

I am not sure why this seems to be a well-kept secret, but, in my universe, it is.

Here’s the problem: people come into mediation; after sufficient gamesmanship, they reach an agreement, resolving numerous thorny issues; and, then, for reasons that are of great mystery to me, they sign an agreement, stating that if they have any disputes about drafting issues, they will submit them to the mediator who will then act as an arbitrator.

What?

Why?

So far, everyone involved in this mediation scenario has shown sufficient negotiation skills to resolve all of the “deal terms”.

Why do they become limp-wristed when it comes to the drafting issues?

Many successful agreements are built brick by brick.

Why stop negotiating? Tired?

No matter my opinion, we mediators have a rule that is supposed to guide our behavior in this situation. Rule 12 of the Texas Ethical Guidelines for Mediators (“Guidelines”) tells us:

12. No Judicial Action Taken. A person serving as a mediator generally should not subsequently serve as a judge, master, guardian ad litem or in any other judicial or quasi-judicial capacity in matters that are the subject of the mediation.

Stop there.

Isn’t an arbitrator a quasi-judicial capacity person?

Trust me. Quasi-judicial = arbitrator.

But, there’s more. Here is the Comment, broken down, sentence-by-sentence, with my comments after each:

Comment. It is generally inappropriate for a mediator to serve in a judicial or quasi-judicial capacity in a matter in which the mediator has had communications with one or more parties without all other parties present.

With rare exceptions, that covers all Texas mediations.

For example, an attorney-mediator who has served as a mediator in a pending litigation should not subsequently serve in the same case as a special master, guardian ad litem or in any other judicial or quasi-judicial capacity with binding decision-making authority.

That seems clear.

Notwithstanding the foregoing, where an impasse has been declared at the conclusion of a mediation, the mediator, if requested and agreed to by all parties, may serve as the arbitrator in a binding arbitration of the dispute, or as a third-party neutral in any other alternative dispute proceeding, so long as the mediator believes nothing learned during private conferences with any party to the mediation will bias the mediator or will unfairly influence the mediator’s decisions while acting in the mediator’s subsequent capacity.

“Notwithstanding the foregoing”. Anytime you see that, you know that you have potential problems. I always wonder, “The foregoing? All of recorded history, for example?” This tendency got me kicked out of a few classes in high school, but I will save that story for another day.

So, mediators can serve as arbitrators in some cases. OK, like when?

First, the mediator must declare an impasse.

Then, the parties have to request it and agree to it, which seems redundant, but whatever.

Third, the mediator has to believe, yes sir, ladies and gentlemen, this may be starting to sound like the drafters of these rules did their work during a prayer breakfast, but, regardless, the mediator must believe that “nothing learned during private conferences with any party will bias the mediator or will unfairly influence” him or her.

There we have it.

The first problem with common practice is that the arbitration provision is part of an agreement, which, I’m sure I don’t have to mention, is 180 degrees from an impasse.

The second problem is that the parties do not regularly “request” it. Many times, the mediator prepares the agreement, and it is part of his boilerplate, and, thus, not “requested”.

Then, we have that age-old problem of “belief”. What mental gymnastics does a mediator have to go through, what criterion applies?

OK, now forget all of that.

We all know how lawyers can ignore rules and screw up all sorts of things.

Consider the fact that the appellate courts and the Texas Supreme Court, the very government body that promulgated the Guidelines, seem totally oblivious to them, as represented in the Provine case[1] and the recent Supreme Court opinion in Milner v. Milner.[2]

Milner is instructive for several reasons and will be the subject of future installments–if anyone cares.

[1] In Re Provine, 312 S.W.d 824 (Tex.App.-Houston [1st. Dist.] 2009, no pet.).

[2] Milner v. Milner, 2012 WL 753681 (Tex., 2012).