Accepting a Case or Refusing to Mediate: Ethical Considerations

20 Pages Posted: 26 Jul 2021

See all articles by Ellen A. Waldman

Ellen A. Waldman

Thomas Jefferson School of Law

Donna Erez-Navot

Yeshiva University - Benjamin N. Cardozo School of Law

Date Written: July 23, 2021

Abstract

A mediator’s ethical responsibilities attach almost immediately upon being contacted with a request to mediate. Not every dispute should be mediated, and sometimes the “fit” between mediator and case is so awkward that it is best to decline outright. Sometimes, after a brief, tentative entry into the conflict, it becomes clear that the better course of action is to halt the proceedings and graciously withdraw. A mediator who has been tapped to serve should ask the following questions before reflexively moving forward:

1. Am I competent to handle this case?

2. Does this case pose a threat to the integrity of the mediation process?

3. Do I have a conflict of interest, due to either my relationships with one or both of the parties or counsel or my relationship to the subject matter of the dispute? In other words, can I truly mediate impartially?

4. If I mediate this case, can I be certain that I am adequately respecting the parties’ rights to self-determination? Does the fundamental principle of party self-determination require I turn this case away?

Each ethical query will be considered in turn.

Keywords: mediator, ethical resposibility, mediation, conflict of interest, self-determination, competency

Suggested Citation

Waldman, Ellen and Erez-Navot, Donna, Accepting a Case or Refusing to Mediate: Ethical Considerations (July 23, 2021). Mediation Ethics (2021), Cardozo Legal Studies Research Paper No. 652, Thomas Jefferson School of Law Research Paper No. 3892407, Available at SSRN: https://ssrn.com/abstract=3892407

Ellen Waldman

Thomas Jefferson School of Law ( email )

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Donna Erez-Navot (Contact Author)

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

55 Fifth Ave.
New York, NY 10003
United States
(212) 790-0873 (Phone)

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