Content provided in partnership with
Impartiality v. Substantive Neutrality: Is the Mediator Authorized to Provide Legal Advice?
Dispute Resolution Journal, Feb-Apr 2007 by Silveira, Mercédeh Azeredo da
The second conclusion is that so long as the parties agree on the terms of settlement, the mediator should be prohibited from opining on the merits of those terms and from attempting to influence the parties by maintaining that the solution envisaged is not the best or the fairest under the applicable law. The primary goal of mediation is not to achieve fairness in a legal sense. The merit of mediation resides in the fact that the parties may devise a solution with which they are all satisfied, even if it is not strictly in keeping with each party's rights and obligations or would not be available in court or arbitration. Fairness in mediation means satisfying the parties rather than strictly complying with the law.
A mediator may try to reconcile "legal" fairness- that is, compliance with the law-and a settlement acceptable to all only by raising questions for the parties to consider and by encouraging them to explore options that would maximize benefits for all. Only when a mediation might fail may a mediator become more than a facilitator and provide the parties with an assessment of how their legal positions might fare in litigation or arbitration. This should only be allowed as a last resort in order to help the parties reach an agreement satisfying them all and to which they all will freely adhere. Even in this case, however, it is important to stress that the parties are not compelled to subscribe to any proposals set forth by the mediator.
ENDNOTES
1 Michelle D. Gaines, "A Proposed Conflict of Interest Rule for Attorney- Mediators," 73 Wash. L. Rev. 699, 702. See also Leda M. Cooks & Claudia L. Hale, "The Construction of Ethics in Mediation," 12 Mediation Q. 55, 62-63 (1994); Christopher W. Moore, The Mediation Process: Practical Strategies For Resolving Conflicts 15 (1st ed. 1986); John D. Feerick, "The Lawyer's Duties and Responsibilities in Dispute Resolution: Toward Uniform Standards of Conduct for Mediators," 38 S. Tex. L. Rev. 455, 462-463, 466 (1997); Jacqueline M. Nolan-Haley, "Court Mediation and the Search for Justice Through Law," 74 Wash. U. L.Q. 47, 66-71 (1996); Leonard L. Riskin, "Toward New Standards for the Neutral Lawyer in Mediation," 26 Ariz. L. Rev. 329, 354-359 (1984). See also Poly Software Int'l v. Su, 880 F. Supp. 1487, 1494 (D. Utah 1995) (explaining that the success of mediation depends greatly upon the ability of the mediator to maintain neutral stance while preserving confidences); McEnany v. West Del. County Community Sch. Dist., 844 F. Supp. 523, 532 (N.D. Iowa 1994) (involving a challenge to the validity of a mediation settlement on the ground that the mediator was biased through past representation of party by his law firm).
2 See Model Standards of Conduct for Mediators (Model Standards), originally developed in 1994 and revised in 2005. The Model Standards were adopted by the participating organizations- the American Arbitration Association (AAA), the American Bar Association (ABA), and the Association for Conflict Resolution.
Find Research Guides for:
Find Featured Titles for: Reference
- Academe
- African American Review
- African Arts
- African Studies Review
- Afro-Americans in New York Life and History
- Alabama Heritage
- Alabama Review
- American Mathematical Monthly, The
- Anglican Theological Review
- Annals of Dyslexia
- Arab Studies Quarterly (ASQ)
- Auk, The
- Australian Journal of Anthropology, The
- Christian Century
- Natural History
Most Popular Articles in Reference
- The importance of understanding organizational culture
- Credit card attitudes and behaviors of college students
- What factors attract foreign direct investment?
- Libraries Need Relationship Marketing - mutual interest marketing concept, ...
- How to set performance goals: employee reviews are more than annual critiques
- More »