How much must a mediator disclose to the parties about the mediator’s social relationship with one party’s attorney? That question is at the heart of a complaint filed by the Michigan Attorney Grievance Commission against an attorney-mediator in a divorce case who failed to disclose to the husband’s attorney during the course of their year-long mediation/arbitration that she had made vacation plans with the wife’s attorney.
The divorce case, Hartman v Hartman, was filed in Oakland County in 2009, and went to mediation in 2010. The neutral appointed to the case is an experienced domestic relations mediator who served as the parties’ mediator and then as their arbitrator. She issued several arbitration awards, but the case did not resolve and the husband retained new counsel. Just before the final arbitration hearing occurred, the neutral went on vacation with her husband at the Florida home of the wife’s attorney. The husband’s attorney learned of this the day before the neutral departed on vacation.
Whether the neutral’s arbitration awards should stand was the subject of litigation, and both the trial court and the Court of Appeals (Hartman v Hartman, Case No. 304026, decided August 7, 2012) upheld them.
Whether the mediator acted unethically – i.e., acted contrary to the Mediator Standards of Conduct – is regularly discussed in mediation trainings. We have used this case the last few years in teaching ethics in mediation trainings, as a clear example of a conflict of interest. The Michigan Mediator Standards of Conduct have always recommended that a mediator should avoid even the appearance of a conflict of interest by promptly disclosing actual and potential “conflicts of interest reasonably known to the mediator.” They now explicitly state that a “mediator should resolve all doubts in favor of disclosure.” We have even suggested in trainings that, based on Standard II.E., she should have declined to serve at the outset. Standard II.E. provides, “If a mediator’s conflict of interest could be reasonably viewed as undermining the integrity of the mediation process, a mediator shall withdraw from or decline to proceed with the mediation regardless of the express agreement of the parties to the contrary.”
This provision is not unlike its predecessor in effect in 2010, “After disclosure, the mediator shall decline to mediate unless all parties choose to retain the mediator.”
Whether the mediator’s failure to disclose a conflict of interest amounts to attorney misconduct seems to be the essence of the complaint. The complaint refers to Michigan’s Standards of Conduct for Mediators as they existed in 2010, when the alleged offense occurred; the Standards were revised in 2013, but the provisions regarding conflicts of interest are essentially the same. Unfortunately, the complaint calls them “Standards of Misconduct,” and cites the attorney for “failing to adhere to and conduct the arbitration” in conformity with the Standards—yet these Standards pertain to mediation, not arbitration. Since the attorney conducted both mediation and arbitration without disclosing the relationship, it’s not clear whether the grievance is based on the conflict of interest during the mediation, or during the arbitration, the latter being more serious; it appears to include both.
Since Michigan has no state-level enforcement of mediator ethics (in contrast with states like Florida), parties and mediators must rely on other procedures such as litigation and attorney misconduct proceedings to ensure ethical behavior from mediators. If this mediator were not an attorney, the worst sanction would be removal from the court’s roster of mediators, unless the husband could prove actual damages (and there are virtually no U.S. cases where a party has prevailed against their mediator for damages). Citing an attorney for professional misconduct for violating the Standards of Conduct for Mediators would send a strong message to all attorney-mediators to heed those Standards when mediating.
