Michigan mediators have been wrestling with what they must disclose to potential mediation parties, especially since the Hartman case. That was the divorce case where the mediator did not disclose to the husband or his attorney that she was good friends with the wife’s attorney—such good friends that she flew to Florida to spend a week at wife’s attorney’s condo, with their respective spouses, before the months-long mediation finished. When the husband filed a grievance against the attorney-mediator, the Attorney Discipline Board determined that Michigan’s Standards of Conduct for Mediators were so broad regarding what constitutes a conflict of interest that it was impossible for an attorney to know “what kind of prior relationship will subject the mediator to a charge of an unethical conflict of interest.”

Some of us mediators think that, however broad the standard may be, a mediator should definitely disclose her vacation with one side’s attorney during the pendency of the mediation. A sub-committee of the State Bar’s ADR Section is currently considering an amendment to the Standards of Conduct for Mediators to make this clearer.

Michigan’s Standards of Conduct for Mediators are based on the Model Standards of Conduct for Mediators, which have a lengthy provision on Impartiality followed by another lengthy provision on Conflicts of Interest.

Meanwhile, mediators from around the world have developed what they call the Universal Disclosure Protocol for Mediation. The provision on Conflict of Interest is brief and succinct:

C1.1 The mediator should clarify her or his independence and impartiality and reveal any relevant relationships.

Would that kind of direction have prompted the mediator in the Hartman case to disclose to the husband her friendship with the wife’s attorney? Would she have recognized this as a “relevant relationship,” even if she did not think it amounted to a conflict of interest? Even if it still would not have guided the Hartman mediator, I appreciate the efforts expended by these mediators to distill the essence of mediator disclosure into a principle that any mediator can follow.

https://universaldisclosureprotocolmediation.com/the-protocol/