Mediation Madness: How to Avoid Common Ethics Mistakes as an Advocate or Neutral

At some point in every litigated matter, the parties are likely to participate in mediation, either voluntarily or because a court requires mandatory participation. Although most advocates represent clients in non-binding mediation in most disputes, neither the lawyer nor the client is necessarily well-prepared. It is not enough to know your case well. Counsel needs to meet their ethical obligations in connection with selecting the neutral mediator, preparing the client for the stress and duration of mediation, evaluating what information to disclose, considering whether a joint session will help or hinder negotiations, and assessing in advance the essential terms of a settlement (especially the non-monetary terms). Failure to consider and prepare for these aspects of mediation, can lead to ethics violations and potential professional liability for failure to meet the duties of competence, diligence and confidentiality, among others. Neutral mediators also have ethical and professional duties as to competence, diligence, confidentiality and conflicts, which need to be assessed upfront and considered throughout the process. 

Join Francine Friedman Griesing, Esq., founder and Managing Member of Griesing Mazzeo Law, as she details how to avoid common ethical mistakes as an advocate or neutral, including preparation for and participation in mediation.

1. Explore professional and ethical obligations to clients as an advocate when preparing them for mediation

2. Prepare more effectively to represent clients in mediation and in reaching and memorializing a settlement

3. Assure that as a neutral mediator, you fulfill your professional and ethical duties as to competence and diligence

4. Protect confidentiality, whether you are a party advocate or a neutral in mediation

5. Assess upfront and throughout the mediation process, that as a neutral mediator, you do not have a conflict and/or that you obtain informed written consent to a waiver of conflicts