The Ethical Civil Trial Mediator ~ The Letter, The Spirit And The Practice

I. Introduction

The successful civil trial mediator can be nothing short of ethical. To be anything less will destroy his/her practice. The playing field must at all times be balanced. The effort on behalf of the plaintiffs must be equivalent to the effort on behalf of the defendants. The efforts to get each side to their respective goals must be accompanied by a level of trust that will allow a mediator to help the parties move from their goals to common ground and resolution.

Our profession can be mentally, emotionally, and physically draining. The art of actively listening and thereafter communicating with appropriate empathy, interest and objectivity takes 100% focus without time for a lunch break, afternoon exercise, or a call to your spouse. Our profession is a lonely one. After 10-12 hours of successful negotiation, the parties may go home; however, the civil trial mediator must prepare for the next day by reading position statements and getting familiar with the people, their issues, and the status of the case for the next day. You crawl into bed late at night to get 5-7 hours of sleep only to get up in the morning refreshed, energized and ready to take on the challenges of new resolution.

Our ethics stand as our common thread of camaraderie. Our ethics stand as a means by which we can all conduct ourselves for the benefit of one another. Our ethics allow us to work for the betterment of our practices, specifically, and our profession, generally. I have always maintained the attitude that if all mediators can conduct their process at the highest level of integrity and ethical conduct, it will serve for the benefit of all of us. There are more disputes and more cases than any of us know what to do with. The question is, will people trust the mediation process to give peace a chance and who will they place their trust in to mediate? Will your calendar be reserved over the next 10 days or the next six weeks? Our ethical standards stand as the pillars to our glorious profession that provide the citizens of our states and nation an opportunity for self-determination in an impartial, confidential process. I am honored to be a part of this profession and that honor translates into a strict observance of our ethical standards. Those standards have a "letter", "spirit", and a "practice." This article will tie the three together in defining the Ethical Civil Trial Mediator.

I acknowledge that there may be different viewpoints based on different perspectives: academic, sole practitioners, independent contractors, or exclusive mediators with a "for profit" or "not for profit" agency. While this will not change the level of ethical standards, I recognize that there are other views to the approach that I have incorporated in my practice within my law firm. The following background is critical to your understanding of my perspective.

I have been blessed with a full-time civil trial mediation practice. I am called on to mediate primarily multiple party and/or class action cases involving personal injury, wrongful death, complex commercial, employment, environmental and public issue disputes. My calendar is reserved generally six-eight weeks in advance. I mediate within my law firm, Sirote & Permutt, in Birmingham, Alabama, where we have a Mediation Practice Group of two full-time mediators, two contract mediators, and 20 others who are registered with our state. We are currently mediating approximately 500 cases per year.

I began this journey in 1981. After several years of a commercial litigation practice, I found the need, on behalf of my clients, to explore the world of mediation and arbitration. I sought and received training by the American Arbitration Association in both areas. Over the next seven years, I utilized mediation and arbitration as an adjunct to my litigation practice. Occasionally I was called upon to arbitrate or mediate cases for others.

In 1988 I was asked by the Alabama Bar Association to look into the feasibility of more formally implementing mediation. With the help of my state bar Alternatives to Dispute Resolution Task Force, I drafted the Alabama Civil Court Mediation Rules for review and approval by a number of other state bar committees. After three years of review, they were submitted to the Alabama Supreme Court where we received final approval in 1992. At that time, I had mediated and/or arbitrated approximately 100 cases in a diverse number of areas from simple contract cases to anti-trust and trademark infringement cases and from divorce cases to personal injury.

However, beginning in 1992, I began receiving regular phone calls as to my availability as to an even wider range of pending civil actions. I had the opportunity to mediate a number of "visible" cases that captured the public's attention to the concept of mediation. 1Attorneys from around the state began to inquire if I could assist them in their cases. With no intent of creating a mediation practice, I began to take on these requests. From one mediation a month to one mediation each day, I have, for the past six years, become a full-time civil trial mediator.

I have always practiced within the context of a law firm and still do. My firm, Sirote and Permutt, has been most gracious and open to the idea of allowing me to expand my practice to accommodate the requests of my professional colleagues. Accordingly, I have created mediation centers in Birmingham, Alabama, as well as in Huntsville, Montgomery, and Mobile, where our firm also has offices. I have been joined by a veteran trial attorney, Marty Van Tassel, a former presiding judge, Stuart Leach, and Maria Campbell, a former chief counsel of a major national bank, the latter two being contract mediators. We have an extraordinarily dedicated staff of one administrator, two coordinators, and a secretary who provide us with invaluable support. Our centers are user friendly and the attorneys and their clients who come within our "neutral setting" are provided with friendly smiles, warm southern hospitality, and an amicable environment within which to resolve their cases.

Our centers are set up to provide a number of amenities from breakfast to lunch and dinner, to coffee, cold drinks, and yes, even wine in the evening! Our facility in Birmingham has been designed to enable us to do large multi-party mediations (where we have mediated in excess of 70 parties) and to handle three to four mediations at a time (with growing room available!)

In my mediating and lecturing around the country, I have found that it is unique for a law firm to be able to accommodate a mediation practice such as the one we have established at Sirote & Permutt. It is more than dollars and cents (although the dollars have been phenomenal for the firm). Equally important has been the professional manner in which we have built our mediation practice. My philosophy is "one mediation begets two, begets four, begets 16 and so on."

As one of the pioneers of mediation in my state, I have also had the philosophy that mediation is bigger than any one individual or any one firm. I have made myself and my firm available to other attorneys and firms who seek to understand how we, as attorneys, can grow this profession in a responsible, ethical and, yes, even profitable way. I wish to share that ethical vision with you in the context of, The Ethical Civil Trial Mediator - - The Letter, The Spirit, And The Practice.2

II.The Process

I choose to address the "process" first because it is first. It is more important than any one individual mediator, any one mediation firm or association, and more important than one set of conflicting parties or court that will otherwise adjudicate their issues. If "the process" can be maintained at the highest level of professional responsibility, it remains available for conflicting parties to utilize with full confidence of its impartiality, confidentiality, and means for self-determination.

Self-Determination:

The Model Standards Of Conduct For Mediators states as follows: Self-determination is the fundamental principle of mediation. It requires that the mediation process rely upon the ability of the parties to reach a voluntary uncoerced agreement. Any party may withdraw from the mediation at any time. (I. Self-Determination, Model Standards of Conduct for Mediators).

The Alabama Code of Ethics for Mediators similarly recognizes this self-determination in four parts:

Parties' Right to Decide. A mediator shall assist the parties in reaching an informed and voluntary agreement. Substantive decisions made during mediation are to be made voluntarily by the parties.

Prohibition of Coercion. A mediator shall not coerce or unfairly influence a party into entering into a settlement agreement.

Misrepresentation Prohibited. A mediator shall not intentionally misrepresent material facts or circumstances in the course of a mediation.

Balanced Process. A mediator shall promote a balanced process and shall encourage the parties to participate in the mediation proceedings in a nonadversarial manner.

Responsibility to Nonparticipating Parties. A mediator may promote consideration of the interests of persons who may be affected by an agreement represented in the mediation process. (Standard 4 Self-Determination, Alabama Code of Ethics for Mediators).

The Florida Standards of Professional Conduct similarly cite as follows:

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 to reach informed and voluntary decisions while protecting their right to make decisions for themselves.

Coercion Prohibited. A mediator shall not coerce or improperly influence a party to make a decision or continue participating in mediation if the party is unwilling to do so.

Professional or Personal Opinions. A mediator shall not attempt to interfere with a party's...

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