Mediation - Latest Experiences

During the last couple of weeks, I've participated in several mediations. Some of those have been successful; one was not. I've come to the conclusion that the mediators that claim to have some of the highest result rates might be engaging in conduct that is inappropriate and unethical. One practice that I've seen is that a mediator will suggest that the client is unsavory, or should not be represented. The mediator might even suggest that the attorney should state that they will not continue to represent the client, in order that the case might settle.

To reach an agreement that is equally unhappy for each side might be a noble objective, but where an attorney is importuned to abandon a client's righteous cause because the client is physically unattractive, not "jury friendly", or will not "present well", is not in keeping with the attorneys' duty to not "reject, for any consideration personal to himself or herself, the cause of the defenseless or oppressed." Bus. & Prof. Code section 6068(h). The California Legislature did not put in its instructions to attorneys that they may only represent the "presentable."

It appears that some of these mediators have simply ignored or forgotten the requirements of professional responsibility once they engage in the role of a mediator. What I've taken to doing at the outset of the mediation is simply informing everyone that I'm not going to discuss the case outside my client's presence unless the other side's attorney is present. In other words, I won't speak separately with the mediator.

I'm not going to tolerate anyone bad mouthing my clients and expecting me to sit by silently, particularly not a supposedly unbiased mediator who my client is paying to attempt to acheive a settlement.