Yesterday, I received an email alert from the GODR regarding a recent ethics opinion, only the third ever to be issued.  It is a particularly troubling case due to the numerous and egregious lapses in judgment made by this particular mediator.

In summary, the mediator, who was also a licensed psychologist, was referred a couple in need of counseling through a church program for troubled marriages.  After meeting with them jointly and individually in a vague and undefined capacity, he offered them a choice: continue marriage counseling with him or allow him to mediate their divorce.  This was the first mistake.

After the couple chose to have him mediate, but before the mediation occurred, the wife/mother requested that the mediator conduct psychological testing on her son for some educational problems.  The mediator agreed. Mistake number two.

Sometime later, the couple participated in two mediations, after which the husband/father terminated the mediation relationship and filed a complaint against the mediator. The husband/father alleged that the mediator was biased against him and pointed to several statements made by the mediator during the mediation, the educational testing performed by the mediator on behalf of the mother, as well as the fact that mediator allegedly “spent an extra hour counseling his wife alone after the second mediation session ended.”  The mediator claimed the “extra hour” was simply a caucus and part of his policy to give “equal time” to the parties.  He also claimed that the alleged bias was part of his technique to help diffuse tension and I guess, reality test.  The explanations he provided seem like ex post facto excuses, but not clearly “red flag” mistakes or ethical violations.

After the mediation relationship was terminated, the wife/mother asked the mediator to continue counseling her children for educational and behavioral issues, and he met with both of her children several times.  Mistake number three.

But we still haven’t reached the piece de resistance.

Sometime after the counseling session, the wife/mother filed a motion in conjunction with the divorce proceeding and for whatever reason, the mediator was called to testify.  rather than refuse to testify, as spelled out in his own Guidelines for Mediation and the ADR Rules, the mediator willingly testified about “how he came to mediate for the couple and the result of the mediation.”  While the Ethics Committee found that these “matters in themselves are not confidential in a court-connected mediation,” they also found

no evidence that he refused to testify or fought to quash a subpoena.  There was no evidence that he sought a waiver of confidentiality from the family. Respondent did voluntarily what he could not be required to do under the rules.

Mistake number four.

Even the judge recognized this mediator’s suspect ethics and wrote in an Order that he

“found [Respondent’s] testimony and involvement with the parties in this case questionable at best.”

Then, in the bonehead move to top all bonehead moves, the mediator responded to the Court’s written opinion challenging the mediator’s professional integrity by filing an eight page affidavit, in which the mediator

described [the husband's] disruptive and uncooperative behavior during the mediation and quoted angry and insulting statements [the husband] made in joint session, as well as in caucus.

In his defense, the mediator claimed that the court needed to know “the true reason for the failed mediation,” and that he “sought only to clear [his] name.”  Mistake number five, six, seven . . .

The Ethics Committee Opinion reads like a laundry list of “What Not to Do As A Mediator”.    Of the major issues, the Committee found that the mediator violated the Ethical Standard for Mediators by serving the family in three different professional roles within three months’ time – counselor, mediator, educational consultant.

The Committee also found that the mediator’s act of

testifying voluntarily in open court about the mediation and [Mediator's] voluntary submission to the court of an affidavit detailing [the husband's] behavior and words in the mediation constituted multiple violations of the confidentiality rules.

But then, of course, you already knew this because you have common sense. The Ethics Committee felt that this man committed such egregious errors that they removed his name from the roster of approved mediators. Apparently, the first time that penalty has ever been invoked.

My only issue with the Committee is that the Opinion does not name the mediator.  I believe this is a mistake. Ineptitude of this magnitude should be exposed.  While he can no longer accept court-referred cases, he is allowed to continue working with private parties.  In order for the marketplace to function properly, information such as this should be shared or made available to all potential consumers.  And if I knew who he was, I’d expose him in a heartbeat.

I only recently became involved in domestic mediation, and I cannot specifically ascribe any increase in the frequency of my domestic mediations to the economy, but this makes sense to me.  Couples who generally see eye-to-eye but have some disputes over a few assets or maybe visitation and custody issues, are not well served by the adversarial process.  Litigation tends to escalate matters, driving up costs and delaying the finality of the divorce.

Hat tip to NJ Lawyer and mediator Donald Vanarelli.

We are generally the better persuaded by the reasons we discover ourselves than by those given to us by others.
- Blaise Pascal

I think this effectively illustrates why mediation works. As I discussed before,

[Mediation] provides the litigants their last and best opportunity to take control of the outcome of their dispute. ADR professionals will tell you that it provides litigants with a sense of autonomy, empowerment, or control; that mediation is all about self-determination. The parties agree to a solution because they become involved in the process.

An effective mediator, even an evaluative mediator, is one who can help the parties assess the perceived strengths and weaknesses of their positions, examine their needs and interests, and discuss settlement options by asking the right questions.   When parties are asked their opinions, when they are asked to present options, when they are forced to confront issues head on and look objectively at potential outcomes, when an agreement is reached, they come to believe that they reached the solution themselves.

Weeks passed.  No checks in my mailbox.

This call was more of the same.  This time I had had enough.

“Times are hard,” he said.  Times are hard all over, I replied.

“Can you work with me?” he queried.  No, I’ve already “worked” with you, I told him firmly.

“I’m not not trying to pay you,” he exclaimed quite dubiously.  No, I said, your failure to pay me for over 6 weeks now shows me that you really aren’t trying to pay me at all, I sternly replied.   If I don’t receive payment, in full, in the next X days, I’m off to Small Claims Court to file suit.  And I will ask for far more than the fee I offered to accept as a compromise, including my attorney’s fees, court costs and interest.

And so it goes.  I really don’t expect to be paid.  I will absolutely file suit, but I don’t expect him to show up.  I will take a default, but I will likely find it hard to collect.  I take it as a hazard of working court-referred cases.  While I’ve never had a client with an attorney fail to pay and I’ve even had some attorneys pay when their clients haven’t,  I guess I shouldn’t expect much from pro se parties being sued for unpaid credit card bills or held in contempt for unpaid child support.

It’s an odd assortment of phrases that you might expect would bring one to a (quasi) mediation themed blog:  my name, “arbitration”, “mediation”, “what does a mediator do”, “ridiculous lawsuits” (even though others have that well covered).  Some are odd, but related to some key words in stories on which I commented, like “tricked out Mustang GT,” or “cheetah chasing gazelle“.

But one recent query really jumped out:

“how to screw spouse in mediation”

Of course, I had to run the search myself to see what would bring such a despicable person to my blog, because I am 100% certain I have never written an article about how to “screw” anybody.  Turns out that Google search picked out keywords from my recent re-post  “How to Screw Up A Mediation.“  Phew.

One thing I did notice, though is that my most recent search queries are long on queries regarding my more humorous posts and short on anything substantive. I need to do some serious thinking about whether a) I need to spend some time ruminating and writing about mediation again or b) scrap the whole blog, as I have seen absolutely no real benefit to my practice, which was the real purpose of the blog (well, secondary to my own narcissism).  I should be focusing on more face-to-face marketing efforts.  I think “Web 2.0″ (especially twitter – which is a real time bandit) rarely bears fruit.

I’m leaning toward scrapping the blog and leaving it to the professionals like Diane, Vickie, Geoff, Nancy, etc.

We’ll see.

H/T Overlawyered

I am hoping that my friends and colleagues will support me in a charitable event this weekend – May 17, 2009.  I am cycling in the American Diabetes Association’s Tour de Cure fund-raising event with my friend Mike, who has diabetes.

I apologize for the late notice, but I thought I would be out of town this weekend.  When plans changed, I decided to support my good friend, Mike.

The Tour de Cure is a series of cycling events held in over 80 cities nationwide. I have joined thousands of others to pedal in support of the Association’s mission: to prevent and cure diabetes and to improve the lives of all people affected by diabetes.

Mike, Jeff and I will be cycling the “metric century” -a 62 mile route through rolling hills southwest of Atlanta.

I am asking you to help by supporting my fund-raising efforts with a donation. Your tax-deductible gift will make a difference in the lives of more than 23 million Americans who suffer from diabetes and over 57 million people in the United States with pre-diabetes.

It’s fast and easy to support this great cause – you can make your donation online by selecting the “Click to Support Me” link below.

Any amount, great or small, helps in the fight against this deadly disease. I greatly appreciate your support and will keep you posted on my progress.

Thank you very much for your time and consideration,

Chris

For more information on Tour de Cure, please visit www.diabetes.org/tour.

Click here to visit my personal page.
If the text above does not appear as a clickable link, you can visit the web address:
http://main.diabetes.org/site/TR/TourdeCure/TDC218008030?px=4766360&pg=personal&fr_id=5592&et=5gg6lJwbi5HY6_UCQXelIQ..&s_tafId=219222

Popehattip