ADR CORNER
ADR CORNER
A Word to the Wise on Giving Advice
DAVID LUCEY
Mediation participants and counsel often ask for the mediator ’ s opinions and / or advice .
These requests create potential ethical issues . Mediation is a consensual process wherein the participants reach a resolution of their choosing with the mediator acting only to facilitate that process .
Rule 10.310 ( a ) reads as follows :
( a ) Decision-Making . Decisions made during a mediation are to be made by the parties . A mediator shall not make substantive decisions for any party . A mediator is responsible for assisting the parties in reaching informed and voluntary decisions while protecting their right of self-determination .
See also the Committee Notes to Rule 10.310 that read in relevant part :
“ It is critical that the parties ’ right to selfdetermination ( a free and informed choice to agree or not to agree ) is preserved during all phases of mediation . A mediator must not substitute the judgment of the mediator for the judgment of the parties …”
However , Rule 10.370 ( a ) reads in relevant part :
“( a ) Providing Information . Consistent with standards of impartiality and preserving party self-determination , a mediator may provide information that the mediator is qualified by training or experience to provide .” But see 10.370 ( c ); “( c ) Personal or Professional Opinion . A mediator shall not offer a personal or professional opinion intended to coerce the parties , unduly influence the parties , decide the dispute , or direct a resolution of any issue . Consistent with standards of impartiality and preserving party self-determination however , a mediator may point out possible outcomes of the case and discuss the merits of a claim or defense . A mediator shall not offer a personal or professional opinion as to how the court in which the case has been filed
will resolve the dispute .”
Where is the line between permissible sharing information about the merits of the case and impermissible predictions about the outcome ?
STICK TO FACTS when responding to questions such as following :
“ What will going to trial cost ?” - Does the mediator have direct experience in trying a similar case ? If so , one may share that experience , but emphasize that each case is unique .
“ What will Judge X do about issue Y ?” - A mediator may presumably share his / her experience with Judge X on issue Y , as long as the facts and issues are the same or very similar , but again emphasize each case is its own creature .
“ What do you think we should do ?” - DANGER ! Refer to the exact language in Rule 10.370 ( c ). Answer that question with a series of questions . Make sure the series includes questions about what outcome the party desires and what they are willing to do or give up to achieve that outcome .
The interplay of Rules 10.310 and 10.370 requires a careful balance . A mediator who does not provide any input based on his or her knowledge or experience is nothing more than an overpriced messenger service . However , a mediator must not advocate or appear to advocate for any particular outcome .
If a party or their attorney truly desires an evaluation , a mediator may offer his / her services for early neutral evaluation ( ENE ), but he / she must CLEARLY STATE in the retainer / engagement letter that this is the nature and purpose of the services . The retainer / engagement letter should specifically state that the ENE process will NOT satisfy an order that the parties engage in mediation . I strongly recommend having the parties and their counsel sign and initial any such retainer .
All mediators have a responsibility to the
PBCBA BAR BULLETIN 6 parties , to the Courts and to the profession to maintain mediation as a truly impartial and consensual process wherein the parties determine their own outcome . Any perception of bias or coercion by any mediator is not only contrary to the rules but will also cause the public to lose faith in the mediation process . By avoiding any temptation to push parties toward the mediator ’ s preferred result the mediator will , in the long term , enjoy better results , happier clients and will help uphold the purpose of the mediation process .
David Lucey has been a member of the Florida bar since 1990 and a Florida Supreme Court certified circuit court mediator since 2009 . Mr . Lucey ’ s practice , as both Attorney and Mediator , encompasses multiple areas , including civil , litigation , family law , and condominium / homeowners ’ association law . Mr . Lucey is available at 561-632-6921 or DCLLAW 678 @ gmail . com .
For additional ADR tips and resources , go to https :// www . palmbeachbar . org / alternativedispute-resolution-committee /.