ADR Resources - Ethics

OPINION 001-2021
Opinion of the Alabama Supreme Court Commission on Dispute Resolution

The Commission considered your request for an opinion on September 3, 2021.

Request:  A group of registered mediators is contemplating forming a mediation center and pose this question:  Is it proper for our mediation center (made up of registered mediators) to offer a rewards program for lawyers who use their services?  Lawyers would earn points for using our center to mediate and for referring other lawyers to use our center.  Points would be redeemable for gift cards and the more points the higher the value of the gift cards.  Points, if saved, could eventually be redeemed for a 3 day stay at a hotel, for example.”

Response:  No.  A mediation center that offers money, gift cards, financial incentives or other like rewards to a lawyer and/or lawyers using the mediation center harms the profession by giving the appearance of bias, prejudice and partiality towards the lawyer/law firm using the mediation center’s services.  It could give the appearance of preferential treatment. Here, the lawyer is receiving a benefit in exchange for paying the mediator (e.g., earning points which may be redeemed for gift cards, etc.).  A party upon learning that the lawyer and/or law firm is receiving something for hiring the mediator might expect that they will receive favorable treatment. It impairs the mediator’s ability to be impartial and unbiased.

 

Rationale:

Code of Ethics for Mediators:

Standard 5. Impartiality and Conflicts of Interest

(a)  A mediator shall be impartial and shall advise all parties of any circumstances that may result in possible bias, prejudice, or impartiality on the part of the mediator.  Impartiality means freedom from favoritism or bias in work, action and appearance.

(b)  Required disclosures.

(1) A mediator must disclose to the disputing parties the following:

(B)  Any pecuniary interest the mediator may have in common with any of the parties or that may be affected by the outcome of the mediation process.

(D)  Any close personal relationship or other circumstances in addition to those specifically mentioned in this Standard, that might reasonably raise a question as to the mediator’s impartiality.

(3)  Prior service as a mediator in a mediation involving a party or an attorney for a party does not constitute representation of the party or consultation work for the party. However, mediators are strongly encouraged to disclose such prior relationships.  Mediator must disclose any ongoing relationship with a party or an attorney for a party involved in a mediation, including membership on a panel of persons providing mediation, arbitration, or other alternative dispute resolution services to that party or attorney.

Standard 8.  Fees and Expenses

(c)  Referrals.  No commissions, rebates, or similar remuneration shall be given to or received by a mediator for referral of persons for mediation or related services.
 
The key words here “given to or received by a mediator.”  This standard does not say “given by a mediator.”

Standard 1. General

Under Standard 1 the offering of rewards and/or incentives to those who use the mediator’s services jeopardizes the mediator’s integrity and impartiality.

Standard 1 (a) Integrity, Impartiality and Professional Competence

(1) A mediator shall not accept any engagement, perform any service or undertake any act that would compromise the mediator’s integrity.

The standard says “would” not could or did.  As noted in Standard 8, “a mediator occupies a position of trust with respect to the parties and the court system.”

Emphasis added.