ADR Section Recommends More Mediator Disclosure

What should mediators disclose to parties who are considering appointing them as their mediator? Mediators are supposed to be neutral, so parties want to know about any connections a mediator may have with a party or attorney that might make them biased.

The Michigan Mediator Standards of Conduct provide guidance on this. They require mediators to disclose conflicts of interest and grounds of bias or partiality reasonably known to the mediator (Standard III.C). A conflict of interest is defined as “a dealing or relationship that could reasonably be viewed as creating an impression of possible bias or as raising a question about the impartiality or self-interest on the part of the mediator.” Standard III.A. (Michigan’s Standards of Conduct for Mediators are very similar to the Model Standards of Conduct for Mediators.)

In a 2019 case, Michigan’s Attorney Discipline Board (ADB) opined that requiring attorney-mediators to disclose any prior relationship with another attorney would be unworkable, and stated that “[w]ithout specific language describing what does and does not constitute a conflict of interest, the Standards of Conduct for Mediators does not adequately inform a mediator… as to what kind of prior relationship will subject the mediator to a charge of an unethical conflict of interest …..”

The ADR Section of the State Bar took this as a challenge, and appointed an ad hoc committee to review the standards on disclosure. I have had the privilege of serving on this committee, along with Mat Kobliska, Dale Ann Iverson, Mike Leib, Marty Weisman, Ed Pappas and Bob Wright, ably chaired by Lisa Taylor. The committee’s goal was to develop guidelines regarding mediator disclosures that would be more helpful to mediators, especially in providing the specificity that the ADB found was lacking.

The result is a proposal to amend the Standards of Conduct, by merging Standard II, Impartiality, and Standard III, Conflicts of Interest, into one new standard entitled, “Impartiality, Disclosure and Withdrawal.” The proposed standard does not change the essence of the current Standards, but it provides more specific guidance regarding disclosure.

As it studied how impartiality applies to mediators, the committee realized that the term “conflict of interest” doesn’t quite get at the problem. A mediator could well be partial without having a particular conflict of interest. So the committee proposes doing away with the term “conflict of interest” in the Standards. Instead, the proposed standard speaks of “dealing or relationship” and “impartiality or self-interest.”

For example:

Current Standard III.C. A mediator shall promptly disclose conflicts of interest, grounds of bias, and grounds of partiality reasonably known to the mediator.

Proposed (new II.D.) A mediator shall promptly disclose a dealing or relationship that could reasonably be viewed as raising a question about the mediator’s impartiality or self-interest.

The committee also discovered some guidance from the ABA, designed for judges, that it found quite helpful for mediators too. The ABA identified three main categories that neutrals should investigate as they consider what to disclose, with three sub-categories within the third main category:

  1. Financial
  2. Professional
  3.  Personal

a. Acquaintances

b. Friendships

c. Close personal relationships.

Within the “Personal” category are three levels of social relationships, in descending level of closeness: acquaintances, friendships, and close personal relationships. Generally, acquaintances – including social media links – do not need to be disclosed. On the other hand, close personal relationships most likely should be disclosed, and friendships lie somewhere in between. Our committee thought this would be especially helpful in addressing the problem confronting the ADB, where a divorce mediator did not tell Husband and his attorney that she made plans to visit Wife’s attorney at his condo in Florida during the pendency of the case. The ADB ruled that the mediator had done nothing unethical by failing to disclose her friendship with Wife’s attorney, but our committee thought otherwise, and believe this more specific guidance regarding friendships would make such disclosures more likely.

SCAO has final authority on Mediator Standards of Conduct, pursuant to Court Rule, and our ad hoc committee has submitted its proposal to SCAO. But, whether or not SCAO approves this version, take a look and see if these give you a better idea of what exactly you should and should not disclose.

Standards Of Conduct Proposal Submitted to SCAO

On Papal Apologies

The Pope completed a tour to Canada last week that included multiple expressions of apology to Native peoples for the Catholic Church’s role in their forced assimilation.

Did it help? Did his apologies “hit the mark” or were they insufficient somehow? Depends on who you ask. Many people wept in response to the Pope’s heartfelt remarks, which included saying that he was “deeply sorry” and asking for forgiveness. But he apparently did not apologize on behalf of the Catholic Church, which some listeners were hoping to hear. This may be because the Catholic Church per se cannot sin.

Institutional apologies are tricky. Pope Francis was not personally responsible for the Indigenous residential schools, and most in his audience did not actually experience them. As one survivor commented, the abusers are the ones who should be apologizing, but, “they’re all gone now.” So Pope Francis’ words meant nothing to him.

There is a special term for an institutional apology by a religious body: the “ecclesial apology.” According to Jeremy Bergen, a professor of religious studies at Conrad Grebel University College in Ontario, ecclesial apologies are relatively new, appearing for the first time only after World War II, when German Protestant churches acknowledged that they failed to oppose the Nazis adequately. In the 1990’s, church apologies increased. He has written a book about this, entitled Ecclesial Repentance: The Churches Confront Their Sinful Pasts.

Professor Graham Dodds, a political science professor at Concordia University in Montreal who researches political apologies, says timing, word choice and contrition are important elements of an effective apology.

Pope John Paul II offered many ecclesial apologies during his reign, perhaps most memorably when he tucked a note into the Wailing Wall in Jerusalem. His successor, Pope Benedict XVI, apologized to the church in Ireland for clerical abuse. Pope Francis has apologized for many church wrongs during his reign.

Apologies are challenging. They get even more complicated when they involve an institution, and when the wrongs were committed in the past, by people no longer alive. Is it worth it? Does it make sense for a pope, or any leader, to apologize for wrongs committed by his predecessors? I suspect that the popes of this century would say yes. The book of James suggests that confession brings healing (James 5:16), and that’s what these popes were trying to do. A good apology is the first step; forgiveness is another, and reconciliation may follow upon that. None of it is easy, but the price of doing nothing is high too.

Pastor Sues Former Parishioners

Christians are not supposed to sue one another. If they have disputes, they should work them out privately, within the church, not in public courts. That’s the gist of I Corinthians 6:1-7.

Here’s an especially egregious violation of this command: a pastor has filed a lawsuit against former members of his church. One would expect a pastor to exhort his members not to sue, and to lead by example, not to be the plaintiff himself. Moreover, the people he is suing have accused him of sexual harassment, and he is suing them for defamation. Whether he’s guilty or innocent, this looks like a serious attempt to squelch accusations and even defame his accusers. And it could have a chilling effect on other victims who now have one more reason not to come forward.

Whether or not he’s guilty, and whether or not his accusers have defamed him, this kind of dispute belongs in the church, not in civil courts. Hopefully the Indiana court will dismiss this action and send it back to where it belongs, the church. Indeed, the former pastor’s denomination, the Presbyterian Church of America, has initiated disciplinary proceedings against him. According to some reports, the process is not going well – but that’s not a reason to bring this into the civil court system, contrary to God’s Word. That’s a reason to beef up church discipline systems so that they mete out justice even better than the legal system.

Apologize Without “Sorry”

Sometimes an apology is warranted, but saying “I’m sorry” isn’t the best way to do it. While this phrase should always be considered when pondering an apology, sometimes other phrases will actually be more helpful to the particular situation. Consider this article from a business school professor, Stop saying “I’m sorry” at work–and use these 3 phrases instead, says Wharton psychologist.

He recommends statements that practice accountability while suggesting solutions to help move things forward, rather than dwelling on past mistakes. For example, intsead of saying “I’m sorry for being late,” say, “Thanks for your patience.”

The point is to be willing to apologize when you’ve made a mistake, and to think carefully about how to word your apology so that it attempts to repaire the relationship.

Free At Last: Expungement

Free at last! Jesus frees us from the guilt and shame of our sin, but only the state can free us of a criminal conviction. The process is called expungement, and I had the privilege yesterday of seeing a friend’s conviction expunged. Like so many of us, she “did something stupid” long ago, and she has had this conviction tied to her identity ever since. Every job application, applications for membership in organizations, even an application to minister to children at church, brings the dreaded question, “Have you ever been convicted of a criminal offense?” Now my friend can honestly answer, “No.”

I love the concept of expungement because it parallels what Jesus does for us when we confess our sins to Him. Our criminal act offends the state; our sin offends God. The state expunges; God forgives. The criminal conviction is still a part of a person’s official record, but it is not visible; it cannot be used against the person. Likewise, sin is still a part of our past, but God removes it “as far as the east is from the west” and does not count it against us. (Psalm 103).

Neither process is easy. The steps involved in applying to expunge a conviction are many, including sending applications to the state police, attorney general, and prosecutor, being fingerprinted, and appearing before the sentencing judge. Confessing our sin may also be a process as we move beyond our own defensiveness and pride and admit we have failed.

So much in life weighs us down. Expungement is one of the few gifts that lightens our load. I’m happy for my friend, and happy that I could be part of the process of helping her attain a small measure of freedom.

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