ADR Resources - Ethics
Opinion of the Alabama Supreme Court Commission on Dispute Resolution
The Commission considered your request for an ethics opinion at its meeting on June 28, 2013.
You state that a judge requested that any mediated agreement include the following language:
WAIVER OF DEFENDANT
The undersigned Defendant further waives any notice required by law as a condition precedent to taking of depositions in any way permitted by law and the rules of this Court; and specifically agrees that depositions may be taken herein by affidavit before any Notary Public or other officer authorized to administer oaths and when so taken may be used like other depositions, as provided by Rules 28 and 29 of Alabama Rules of Civil Procedure, and hereby consents that this cause proceed to final judgment without further or other notice whatever to said Defendant.
Your questions are:
- Is the inclusion of this paragraph in the mediated agreement, when requested by the court, ethical?
- If I prepare this as a separate document to be signed at mediation, is this the preparation of pleadings which is unethical?
- If the inclusion in the agreement and the preparation of separate document is unethical, how do you suggest that I comply with the instructions of the court?
The Commission opines that a mediator cannot coerce a party into entering a settlement agreement or require the parties to include particular language in the agreement. See Alabama Code of Ethics for Mediators, Standard 4 (b) (as amended through June 1, 1997). Although inclusion of the statement in a memorandum of settlement may not be substantive coercion, the Commission opines it runs afoul of the broad principle of self-determination that is the bedrock of mediation. Therefore, the answer to your first question is No.
The Commission further opines that the answer to your second question is Yes.
Because question three is not a question about mediator ethics, the Commission declines to answer it.