New Standards of Conduct for Mediators were proposed by Michigan’s State Court Administrative Office last week. They can be viewed at by clicking on the title above, or by going to this web-site:  http://courts.michigan.gov/scao/features/mailings/2011/11-10-11/MediatorStandardsOfConduct.pdf.

 The public comment period runs through the end of February 2012. I hope many people comment on them, because they break new ground and could be a significant contribution to the field of mediation nationally.
These Standards break new ground in that they apply to both general civil and domestic relations mediators. We could not find a set of Standards of Conduct for Mediators that did this, so we basically developed our own. I had the privilege of serving on the sub-committee that developed these standards, and on the larger committee that refined them for general approval, both convened by the State Court Administrative Office.
The American Bar Association joined with the Association for Conflict Resolution and with the American Arbitration Association to develop the Model Standards of Conduct for Mediators; these were first published in 1994, and revised in 2005. Michigan’s current Standards of Conduct for Mediators are based on these Model Standards. However, they do not address some of the ethical issues that arise in divorce mediation, so divorce mediators are advised to consult the Model Standards of Practice for Family and Divorce Mediation, which were first developed by The Association of Family and Conciliation Courts in 1984, and thoroughly revised in 2000 by a consortium of family mediation organizations, including the ABA’s Family Law Section, the Academy of Family Mediators and the AFCC.
Our sub-committee, comprised of Zena Zumeta, Barbara Johannessen, Susan Butterwick and myself—all mediators and mediation trainers who do both domestic and general civil mediations—yearned for one set of Standards that would cover all aspects of mediation. Not only is it cumbersome to be familiar with two sets of Standards, but some cases – such as child neglect placement or adult guardianships — do not clearly belong under either Standards. Barb J gets credit for undertaking the daunting task for overlaying the two sets of Model Standards to try to develop a common thread. We ultimately opted to adhere to the format of the general civil Model Standards, with its nine categories, incorporating many of the principles from the Family and Divorce Mediation standards.
We followed some “guiding principles” as we developed these standards:
• Adhere to Model Standards language as much as possible; unless we had a good reason to alter the language, we retained the Model Standards phrasing. Thus, many portions of these Michigan Standards mimic the Model Standards, including the first sentences of most of the nine major Standards.
• Knowingly redundant; some principles apply to more than one topic so we mentioned the same principle in two locations. For example, the requirement that the mediator continually assess whether a party is physically or emotionally unsafe is found under both “Competence” (IV.B.) and under “Quality of the Process” (VI.A.4.a)
• Distinguish between “parties” and “participants;” the mediator owes a slightly different obligation to the decision-makers in the mediation than to the other people who attend the mediation so we carefully determined where that line was. Thus, the Standard on Self-determination applies only to parties (Standard I), whereas the Standard on Impartiality (Standard II) applies to all participants.
• Distinguish between “shall” and “should.” In general, the first sentence of each standard is the “shall” – the ethical principle – and subsequent provisions flesh out the principle with both “shall” and “should.” Thus, a mediator shall conduct a mediation impartially, and should neither give nor accept a gift from a party (II.A.2).
• Everything in this set of standards is part of the standard itself, in contrast with the Model Standards, which include both principles and commentary.
• Everything is stated as a standard, and not simply a suggestion. Thus, for example, we omitted the observation in the Model Standards (I.A.2.) that a mediator should make parties aware of the importance of consulting outside experts.
• Omit general statements; e.g., we omitted this statement found in the Model Standards: “The role of a mediator differs substantially from other professional roles.”
The one aspect of these Proposed Standards that differs significantly in format from the Model Standards is Standard VI, “Quality of the Process.” In the Model Standards, this Standard simply enumerates a variety of topics 1 through 10, dis-connected from one another. We chose to organize the principles in this section under several sub-headings: Diligence and timeliness; Participants and participation; Procedural fairness; Safety and appropriateness of mediation; and the Role of the mediator. We did this to make these Standards “user-friendly,” so that a mediator who needs specific advice can more readily find it in the Standards.
While these proposed Standards contain much more information than Michigan’s current Standards, which are only two pages long, they do not depart significantly from either set of Model Standards in substance. However, for general civil mediators who have never consulted the Family and Divorce Mediation standards, the provisions relating to safety and well-being of participants, and reporting suspected abuse, will be unfamiliar.
The most challenging aspect of these Standards for the committee concerns the role of the mediator: when a mediator offers to propose a resolution, is the neutral still acting as a mediator, or is the neutral now serving in another role, namely, as an arbitrator? The proposed Standards advise a mediator to undertake an additional role carefully, mindful of maintaining impartiality and party self-determination (VI.B).
Michigan mediators would do well to review these proposed Standards carefully, to consider whether these articulate the Standards of Conduct that should guide Michigan mediators. Some courts’ ADR Plans (such as Kent and Grand Traverse) permit a court to remove a mediator from the court roster for failing to adhere to the Standards of Conduct for Mediators, so these Standards may not be merely advisory.
It is hoped that these Standards set a high bar for the unregulated “profession” of mediators, instilling public confidence in mediators and making us proud to be practitioners of this wonderful process.

Kudos to Ameneh Bahrami. She chose not to exact retribution on the man who attacked her, even though she had the legal system behind her. A few years ago, Ms. Bahrami rejected repeated marriage proposals from a fellow university student named Majid Movahedi. In retaliation, Movahedi threw acid into her face, severely disfiguring and blinding her. She had Movahedi prosecuted, and he was convicted. What makes this story even more interesting is that this occurred in Iran, and Ms. Bahrami is Muslim. Islamic Sharia law permits “qisas,” familiar to readers of the Hebrew Scriptures as “eye for an eye” retribution-in-kind. In this case, that was literally the sentence: the court ordered that five drops of sulfuric acid be placed in each of Movahedi’s eyes. Last week, when the deed was supposed to be done, Ms. Bahrami stopped it at the last minute, announcing that she had instead forgiven her attacker, and did not want revenge.
She has not released him from the consequences of his actions. She believes the man has not changed and is still dangerous, and wants him to spend his life in prison. She is also requesting financial compensation, as her future economic prospects are grim. (Read more at http://www.guardian.co.uk/world/2011/jul/31/iran-acid-woman-pardons-attacker)
Exacting retribution is a basic human instinct of our fallen nature: you hurt me, so I want you to hurt too. In fact, I may want you to hurt even more than you hurt me, so Levitical law – which permits “an eye for an eye, a tooth for a tooth” – is actually a limitation on man’s insatiable desire for revenge. The most powerful way to stop the revenge cycle is forgiveness, exemplified by, and made possible through, Jesus Christ. Christians agree with this notion, but often in our hearts we still want revenge. This Muslim woman is a humbling example to us. She said she was motivated by the Koran: “The Koran gives you the right to retribution. But this very Koran also encourages you to pardon, since pardoning is one of the highest moral standards.” Christians have an even stronger reason to forgive: not only is it commanded by our holy book, the Bible, but it is exemplified in our God, Jesus Christ.  May Ameneh Bahrami’s pardon of her attacker serve as a reminder to all of us to rid our hearts of any desire for revenge. Consequences, yes; vengeance, no.

Michigan has now joined the majority of states that have enacted an “I’m sorry” law for medical malpractice cases. The statute (MCL 600.2155, effective 4/11/11) declares that statements made by health care providers to express “sympathy, compassion, commiseration, or a general sense of benevolence relating to the pain, suffering, or death of an individual,” to the individual or their close family members, cannot be admitted into evidence in medical malpractice actions as an admission of liability. In other words, the health care provider can acknowledge the suffering of the patient and their family, without risk that it will be used against them.

Lawyers have traditionally discouraged medical care providers from having any contact with the patient when something goes wrong, out of concern that the provider would inadvertently say something that would form the basis of a successful medical malpractice lawsuit. One can imagine how the physician’s well-meaning exclamation, “I can’t understand how I cut off the wrong leg!” would impress a jury. While this might be sound legal advice, it may have actually encouraged lawsuits, as the health care providers’ distance intensified the family’s suffering. I have heard plaintiffs justify their medical malpractice lawsuit with comments like, “He never even called to see how I was doing” – and I’ve heard nurses and physicians lament that they were aching to sympathize with the patient or family but were prevented from doing so.

Such advice is also contrary to Jesus’s teachings. In Matthew’s gospel, Jesus advises that, if you know someone has something against you, you should go to that person and be reconciled to them (Matthew 5:23-25). If someone files a lawsuit against you, you know they have something against you, and the Christian response is to go to that person, rather than staying away from them. Christian practitioners are caught between competing directives—but in the health care industry, this is starting to ease.

This statute allows practitioners to express some sympathy. However, it makes it clear that any expression of culpability accompanying the statement of sympathy will not be protected. So, a practitioner can safely tell a patient, “I’m sorry that you’re still suffering”—that can’t be used as evidence that the practitioner committed malpractice. But if the practitioner adds, “I knew I should’ve counted our scalpels one more time,” that statement is still admissible.

This should arguably assist mediators. Oftentimes, a plaintiff wants an apology but the defendant is reluctant to give it, fearing that, despite the confidentiality of mediation, the apology will be used against the defendant if the mediation is unsuccessful and the case goes to trial. Now, a mediator can assure the defendant that the expression of sympathy or remorse can’t be used against them in court. That ought to free defendants to say what plaintiffs want to hear, and settle more cases, right? Most plaintiffs want more than a general acknowledgement of their suffering, and, even without this statute, can see right through a “hollow” apology. They instinctively know the difference between “I’m sorry that you’re suffering” and “I’m sorry that I caused your pain.”

Peacemaker Ministries recommends that anyone who wants to offer a sincere apology should follow the “7 A’s of Confession.” One of the “A’s” is to Apologize—“I’m sorry.” This statute frees up defendants to say that. But another “A” is to “Admit specifically,” and that statement is still admissible in court to prove liability. The practitioner who wants to make a genuine apology still runs the risk that it could be used against them (although, if the apology is made in mediation, confidentiality will help protect it from admissibility in subsequent legal proceedings).

So I’m not sure this new statute will help all that much. But it’s moving in the right direction, by removing one legal barrier to the dialogue that health care providers need to have with their patients when something goes wrong.