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  • Writer's pictureBen Root

Mediation and Arbitration: Working With Lawyers

Updated: May 10, 2022

Mediation and Arbitration: Working With Lawyers

Interesting question about who is the client and to whom is a duty owed? And what exactly is that duty? I am clear that confidentiality rules effectively prevent a mediator from having a case against him proceed very far, and thus the mediator is, practically speaking, shielded from liability. And I remember from the mists of time many years ago that a right without a remedy is no right, but I wonder what duties, if any, a mediator takes on, say here in California (no UMA), beyond neutrality and impartiality (see Cal Evid Code 1115(b) (neutrality) and Cal Rules of Court 3.857 (diligence, etc.)) and likely not to interfere with self-determination (CRC 3.857(d)) or breach confidentiality requirements. This is really last week’s topic (ethics), but in the dealing with counsel issues, in the seating arrangements, in the whom does the mediator speak to discussion, various duties come up. Any how about the duty to defend a client who is being trampled and has an incompetent counsel? We nibbled around duty (or privilege?) to resign (see CRC 3.857(i)). All good questions.

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There is no gainsaying the importance of confidentiality, and heaven knows, when trying to consider and respond to the interests of people who have not hired you but falling within your area of responsibility, there can be all kinds of problems and even mischief. That means make sure your LPL and E&O insurance are up to date and in force! Make sure duty to defend is in place—probably more important that actual liability coverage. Everybody in California sues about everything!

But as I attempt to work my way up the food chain from pro bono dispute resolution to actual paid meditation, it means that considering issues I generally not had to deal with in my career so far will require some time and effort.

In trying to settle cases over the last several decades, I have often sought to get behind the lawyer shield and get to the other side’s client. That how I got started being an advocate for mediation in the first place—there was no other ethical path I could find. And it worked most of the time. I think it may have even helped opposing counsel some of the time as they were having client management problems and the backsplash was hitting me.

But managing that desire as a neutral is a bit more weighty—especially if one is trying not to be too evaluative. Being a mediator is an effort to balance a role of humility and power at the same time—not always an easy task. Trying to do a good job and foster self-determination is not an easy job.

Perhaps that is enough for today—rambling, but good issues for further thought.

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