ADR Resources - Ethics

OPINION 001-2010
Opinion of the Alabama Supreme Court Commission on Dispute Resolution

The Alabama Supreme Court Commission for Dispute Resolution responds to your request for an opinion whether certain mediator conduct is allowed or prohibited by the Alabama Code of Ethics for Mediators (as amended, 1997) (hereinafter, Code).

The Commission understands that the Circuit Court for the Tenth Judicial Circuit adopted the Birmingham Differential Case Management Plan, Civil (Revised, Sept. 2008) (hereinafter, Plan), and cases may be referred to mediation in accordance with he Plan. The court issues a mediation order that refers a case to mediation, and the order directs who must appear at mediation and with settlement authority. You are the Court mediator, and the court appointed you as mediator in the case and set your hourly fee. The parties did not object to the amount of the hourly fee. You convened mediation but withdrew, and a new mediator resumed the mediation. The second mediator terminated the mediation without a settlement. After the mediation was terminated, the parties negotiated, and you were told the case may resolve if the mediators agreed to reduce their fees and sign the settlement agreement. Specifically, one of the lawyers for a party requested that you and a second mediator reduce your fee as consideration for a release of (1) potential claims against you for claimed mediator negligence during the mediation, and (2) claimed unethical conduct during the mediation. You refused the offer.

In addition, you believe one of the parties violated the court's mediation order because not all parties on one side attended the mediation, and the party that did attend did not have any settlement authority. Finally, you state that because the parties agreed to caucus mediation, only the mediator may have been aware of these facts.

The case settled without the mediators reducing their fees and they did not sign the settlement agreement. The court ordered the case dismissed with prejudice. The mediators' fees are not paid.

Your questions are: (1) what is the ethical response of a mediator when the mediator is told that a settlement is preconditioned on the mediator reducing her fees and she must sign the settlement agreement that contains a release; (2) what is the ethical response of the mediator when one of the parties threatens to file a civil action or Bar complaint or a complaint with the Commission if the mediator does not reduce her fee; (3) does the Code allow a mediator, who is mediating a case under the Plan, to report to the court that not all parties
attended a mediation; (4) does the Code allow a mediator, who is mediating under the Plan, to report to the court that the party that attended mediation did not have any settlement authority; and (5) can the mediator report to the court that her mediator's fee is not paid.

Because the case is dismissed with prejudice, the Commission fmds questions 1 and 2 moot.

The Plan, and the court's order as you have described it, must be considered against the background of Code Standards 2 & 6(a); the Alabama Civil Court Mediation Rules 1(b) and 11 (Rule); and Ala. Code § 6-6-20 (c) (1975) (2005 Repl. Vol.). Standard 2 states, among other things: "A mediator shall observe all administrative policies, procedural rules, and statutes that apply to mediation." Standard 6(a) states: "A mediator shall preserve and maintain the confidentiality of all mediation proceedings except where required by statute or
agreement to disclose information gathered during the mediation." (emphasis supplied). The Mediation Rules apply to court ordered mediation, and Rule 11 governs confidentiality of information "disclosed in the course of mediation". Section 6-6-20 (c) is part of the Alabama Mandatory Mediation Act, and it and A. R. Civ. P. 37 allow a court to impose sanctions on a party that fails to mediate as required by the Act.

Confidentiality is the backbone of mediation. Rule 11, comment. The rule is designed to protect the confidentiality of information disclosed to the mediator during the mediation, and includes information in position statements, oral communications, and documents. However, this rule is subject to the exceptions stated in Standard 2 and Rule 11(b). Even in a hearing to impose sanctions, the mediator cannot be
compelled to disclose statements made and actions taken during mediation. Rule 11 (d).

The Code Standards, the Rule, and the Act address information. They do not address conduct. The California Court of Appeals recently considered a situation when an excess insurance carrier did not appear at appellate mediation as required by the appellate mediation rule. Campagnone v. Enjoyable Pools & Spa Servo & Repairs, Inc., 77 Cal. Rptr.3d 551, 163 CaL AppAth 566 (CaL Ct. App. 2008). The court
stated: "The failure to have all persons or representatives attend .. "' is conduct that a party, but not a mediator, may report to court as a basis for monetary sanctions." Campagnone at 572. The court further held that reporting anything more may violate confidentiality rules.

Based on Campagnone and § 6-6-20(c), a party, but not the mediator, can report that a person or representative required to attend mediation did not attend. It appears that the only reason for the compliant party to report this conduct is to obtain monetary sanctions, and this is not part of the mediation proceeding or process (Rule 1(a), § 6-6-20(a), Standard 3). It is neither the duty nor responsibility of the mediator to act on behalf of any party in this regard. If, for whatever reason, the opposing party is unaware that a required party does not attend, the Commission's opinion is the mediator can withdraw or terminate the mediation. Standard 3(b).

The Commission believes the same reasoning applies when a party appears at mediation without settlement authority. First, under the Plan the party is not deemed to have appeared if he or she does not have any settlement authority. Second, assuming this is conduct and not information gathered during the mediation, it is conduct for which the compliant party can seek sanctions, if desired. The remedy of sanctions is the party's, not the mediator's. The mediator's option is to withdraw or terminate.

The Commission's opinion is a mediator mediating under the Plan cannot report to a court whether or not a party attended mediation, and cannot report to a court whether or not a party had settlement authority; therefore, the answers to questions 3 and 4 are no.

The mediation is terminated and the case dismissed, but the mediators' fees are not paid. This is a situation that is not part of the mediation proceeding, or information disclosed in the course of mediation, or information gathered during mediation. The Commission's opinion is the Code does not prohibit the mediator from reporting to the court that the fees are not paid. The answer to question 5 is yes.