Update to 9/2/21 Post

An update to my post of 2 September 2021, “Mediator Standards of Conduct Could Have Helped Here”: the mediator’s law firm has decided to withdraw from representing the one party in that case, thus removing the appearance of a conflict of interest. This means an appellate court decision on mediator conflicts of interest will have to wait for another day.

This case raises another interesting question: the guidance regarding a possible post-mediation conflict of interest applies to the mediator, but does it also apply to the mediator’s law firm? In this case, the subsequent professional relationship was between a mediation party and the mediator’s law firm, not with the mediator himself. It still smells like a conflict of interest to me, but it’s not so specified in the Mediator Standards of Conduct.

Mediator Standards of Conduct Could Have Helped Here

Where should lawyers seek guidance in determining potential conflicts of interest regarding mediation? Michigan’s Standards of Conduct for Mediators are an overlooked resource here. A recent case bears this out (Great Lakes Home Health Services Inc v Carolyn Ewing, lv gntd Michigan Court of Appeals Case No. 357907).

Mr. Mediator, an attorney with the M law firm, was appointed to mediate a case between two health care companies involving employees who left one company to work for the other. Two similar cases were filed in other counties, involving the same parties and the same allegations. A half-day mediation in May of this year did not result in an agreement.

Several weeks after the mediation, the M law firm agreed to represent the defendant health care company in all three cases. Plaintiff moved to disqualify the M law firm from representing the defendant, since one of the M firm’s lawyers had previously mediated a companion case. The trial court determined that the M law firm need not be removed, as long as an ethical screen was erected to prevent Mr. M from sharing any confidential information gleaned from the mediation with his law partners. Plaintiff was granted leave to appeal.

The M law firm points out that Mr. M is legally bound to maintain the confidentiality of the mediation, pursuant to the Agreement to Mediate that all parties signed. Is that sufficient? Can we trust that Mr. M won’t share with his partners any information regarding the plaintiff learned in the mediation? Even if he doesn’t actually share information, does it still look bad? Is there still an appearance of impropriety here such that the firm should decline the case? Where should lawyers look for answers?

Plaintiff asserts that the trial court relied on the wrong provision in the Michigan Rules of Professional Conduct. The M law firm says it consulted the Michigan Rules of Professional Conduct, two former chairs of the ADR Section of the State Bar of Michigan, as well as a lawyer who specializes in professional responsibility. What no one seems to have consulted are the Standards of Conduct for Mediators.

Michigan’s Standards of Conduct include Section III, Conflict of Interest. The first sentence states, “A mediator should avoid a conflict of interest or the appearance of a conflict of interest both during and after mediation.” This seems to me to be a clear case of an appearance of a conflict of interest after a mediation. Section III. G. addresses whether a mediator may enter into a relationship after the mediation is completed:

“In considering whether establishing … another professional relationship with any of the participants after the conclusion of the mediation process might create a perceived or actual conflict of interest, the mediator should consider factors such as time elapsed since the mediation, consent of the parties, the nature of the relationship established, and services offered.”

In this case, at least two of those factors argue against the M law firm taking the case: the time elapsed was just weeks, and the other party was strongly opposed. In addition, the nature of the relationship was a critical one: a lawyer/client relationship in pending litigation. While Mr. M wasn’t entering into that relationship himself, his law firm was. The Standards would recommend against this relationship.

Attorney-mediators are used to paying attention to potential conflicts at the front end of a case – has their firm represented one of these parties before. This case presents the interesting question of the firm representing a party after the mediation. The Standards of Conduct for Mediators offer guidance in a variety of ethical dilemmas, and they could have helped here.

Minimizing Mediator’s Own Liability

Should mediators include in their retention agreements a waiver of liability? This would be a clause along the lines of, “The mediator cannot be held liable for any act or omission in connection with this mediation.” A thoughtful article by Bill Quatnam just posted on Mediate. com suggests mediators should think carefully about this. The article, entitled, “Mediator Ethics: Should You Ask for a Waiver of Liability?”, explores the law in several states regarding mediator immunity (it varies), questioning both the enforceability of such clauses as well as whether they’re ethical.

I used to have such a clause in my retention agreement–borrowed from someone, somewhere; it seemed like a good idea at the time. Then I read Jeff Kichhaven’s article in IRMI, “Nix Your Mediator’s Prospective Waiver of Liability,” and was persuaded that this is not good practice for a mediator. Kichhaven suggests that these clauses announce to the world that attorney-mediators “have voluntarily lowered their own ethical standards when they change hats from law practice to mediation practice.”

Michigan does not provide immunity for mediators. It’s unclear whether such a clause would be enforceable in Michigan. The ideal course is for mediators to mediate well so that unhappy parties don’t turn on their mediators, rather than relying on a liability waiver or legal immunity.

Sha’Carri Richardson Apology on Live TV

The apology from athlete Sha’Carri Richardson on the Today show last week offers a glimpse into how hard it is to give a good live unscripted public apology. Richardson was banned from competing in this year’s Olympics in her signature event, the 100-meter dash, because she used marijuana before the qualifying event in Oregon last month. She explained that, a few days prior to the event, a reporter informed her that her biological mother had just died. It sounds like her relationship with her mother was complicated, and this news was “nerve-shocking.” So she used marijuana, which is legal in Oregon but is against Olympic rules, to cope with her pain.

In an interview on the Today show with Savannah Guthrie on July 2, Richardson apologized:

“I want to take responsibility for my actions. I know what I did. I know what I’m supposed to do. I know what I’m allowed not to do. But I still made that decision. I’m not making an excuse.”

Richardson struggles not to blame the reporter: “Who are you to tell me this news? But he was just doing his job.”

She also struggles not to defend herself: “People don’t understand what it’s like … Well, people do, we all have our different struggles… Who are you – who am I, to tell you how to cope?”

She said, “I apologize,” but it wasn’t clear whether she was apologizing for using marijuana, or for not finding a different way to deal with her pain. She asked her fans not to judge her, reminding them, “I’m human, I’m just like you, I just run a little faster.” She acknowledged that she let down her fans, and promised it won’t happen again – both elements of a good apology.



Court Admits Mistake

It takes courage to admit one’s error. It takes even more encourage to do so publicly. But a panel of our Michigan Court of Appeals has done that in a well-written opinion issued this week. Judges Gadola, Gleicher and Stephens are to be commended for their honesty, and their example.

The case, Barnowski v Cleary University, concerns a woman who was denied unemployment compensation after losing her job. Her protest of the denial was late, and all the reviewing bodies, including the Court of Appeals, affirmed that she had no good cause for her late protest.

Ms. Barnowski appealed to the Michigan Supreme Court, which remanded her case to the Court of Appeals. This time, the court acknowledged its mistake, entitling a lead paragraph, “Mistakes are Teaching Moments,” with sub-headings including, “Background Facts, Corrected” and “Our Error.” The court even acknowledges that its “confusion” over the two notices Ms. Barnowski received from the Unemployment office, noting, “Our own error in understanding the two notices and the process that generated them demonstrates that Barnowski’s claim has merit.”

It’s healthy to admit one’s mistakes, even for judges. Maybe especially for judges.


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