ethics corner
Secret Settlements by Carol M. Langford
M
any of the issues that arise in mediation have been touched on before in this column; confidentiality, conflicts of interest and negotiation tactics among them. But mediation brings a new spin to these issues, particularly because of a lack of enforceable black-letter rules. There are policy considerations as well—both advocates and mediators engage in balancing acts between the parties and, on occasion, between the client and the public welfare. For instance, sometimes a mediation settlement is offered only on the condition of secrecy. When a mediator sees a disparity in power between the parties or a litigator sees a danger in “secretizing” a settlement about an issue that endangers the public, mediators must reconcile a personal morality and their professional obligations. Historically, ADR was used by stipulation of the parties. As a result, formal ethics rules governing the process of mediation were slow to develop. The American Bar Association largely shied away from developing extensive rules about
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mediation, even during the Ethics 2000 revisions. But over the last dozen or so years and after some false starts during the 1990s, extensive rules of conduct for mediators have been developed and adopted by several organizations and some states. Why was it so hard to do? Because the rule drafters lumped arbitration and mediation together as “ADR,” even though the two are very different. There was already the federal Arbitration Act of 1954 that requires courts to recognize and enforce arbitration awards that are fundamentally fair, and the Uniform Arbitration Act adopted in 49 states.
Because mediators were not judges and had no decision making power, codified regulations were slower to develop. But we now have the Uniform Mediation Act and the Model Standards of Conduct for Mediators. States are free to take whatever portions they want from the Act. Like most rules that attempt to govern the conduct of all lawyers in all matters at all times, there are ethical dilemmas that are unaddressed. For example, what happens when a mediator calls an attorney in for a “private chat without the client.” The mediator then says the opposing party has made a one-time offer
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