When Worldviews Collide—Strategic Advocacy V. A Mediator's Ethical Obligations
NYSBA New York Dispute Resolution Lawyer | Fall 2017 | Vol. 10 | No. 2
5 Pages Posted: 21 May 2018
Date Written: May 21, 2018
The provocative headline “Judge Orders Preservation of Mediation Notes In Gender Bias Suit Against Proskauer” sparks the topic of this Ethical Compass discussion. What should be done when a lawyer’s litigation strategy collides with a mediator’s ethical standards of practice? There is growing concern by dispute professionals, including this author, that this collision is diluting the benefits of mediation and re-shaping mediation into quasi-adjudicative dispute resolution procedure. Others hear this as a clarion call from litigators to the mediation community to realize that mediation ideals are just that, and will not deflate litigation advocacy strategies. These polarized perspectives present an opportunity for dispute resolution professionals to pause and rethink what the dispute resolution professional might do to realistically align litigator’s interests with mediator ethics. This is a particularly timely discussion as the ABA Section of Dispute Resolution Ethics Committee and Committee on Mediation Guidance consider revisions to the 2005 Model Standards of Conduct for Mediators.
I will continue this discussion is three additional parts. Part One discusses the specific colliding of ethical issues raised by the Jane Doe v. Proskauer LL.P case. Part Two highlights the broader value conflicts that this case also raises. In this part, I illustrate how the different perspectives held by litigators and mediators regarding mediation increase the likelihood that a litigator’s litigation strategy will collide with a mediator’s ethics. Then, in Part Three recommendations are suggested about how to begin to address this inevitable collision.
Keywords: advocacy, ethics, litigation, mediation, strategy
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