Mediator Ethical Breaches: Implications for Public Policy
Penn State Yearbook on Arbitration and Mediation, Vol. 6, p. 107 (2014)
63 Pages Posted: 11 Jul 2014
Date Written: January 1, 2014
Court-connected mediation, which includes both court mandated and court encouraged mediation, has become a well-established part of the judicial system in the United States. There are many public policy implications of this phenomenon. These include the underlying goals of the development of court-connection mediation and the responsibility to the public once a court-connected mediation program is established to ensure that the public has access to quality providers of mediation services. Once a court-connected mediation program has established qualifications and ethical standards for mediators, there is a public policy obligation for there also to be a mechanism to educate, reprimand or remove individuals from the list of qualified mediators if they have deviated from the standard expected of them. In this article, I will explore the public policy implications of mediator ethical breaches using the Florida state court-connected mediation experience as a prototype. Specifically, I will attempt to answer the following questions: What are appropriate goals for a grievance process from a public policy viewpoint? Should a grievance process include informal as well as formal means of reviewing grievances? How should a formal hearing process be designed to meet the public policy goals for establishing court-connected mediation programs as well as the interests of the litigants and the mediators?
In Part I, I will briefly explore the underlying public policy goals for the development of court-connected mediation both nationally and Florida in particular. In Part II, I explore the premise that a court is responsible for identifying “qualified neutrals” and for providing both a standard of conduct and grievance system if it is mandating or encouraging parties to use a mediation process as an alternative to trial. In Part III, I will use the Florida state court mediation program’s experience from April 2000 through December 2009 to examine the ethical breaches by mediators and their impact on the public policy goals underpinning the acceptance of court-connected mediation. In this section, I will also explore the concerns of complainants by examining the types of grievances filed and the outcomes sought in order to make the argument that a rehabilitative (rather than retributive) grievance process will best serve the public. Finally, I conclude with some recommendations to better meet the initial public policy goals for court-connected mediation and to better serve the public interest.
Keywords: court-connected mediation, mediation, dispute resolution, arbitration, ADR, mediator, court mandated, policy, ethics, ethical breach, grievance, litigation, qualifications, standards of professional conduct, public policy, law, legal, grievance process, MQB, conflict of interest
JEL Classification: J52, J58, K00, K19, K4, K41, K49
Suggested Citation: Suggested Citation