Ethical Considerations in Ethical Considerations in Workplace Dispute Workplace Dispute

ResolutionResolutionNot-so-Hypothetical-Not-so-Hypothetical-

HypotheticalsHypotheticalsPresented by Presented by

John P. Palmer John P. Palmer

Naman, Howell, Smith & Naman, Howell, Smith & LeeLee

John P. Palmer John P. Palmer is a trial attorney, and is a trial attorney, and

third party neutral with the Waco law third party neutral with the Waco law firm of Naman, Howell, Smith & Lee, LLP.firm of Naman, Howell, Smith & Lee, LLP.

John received his undergraduate degree John received his undergraduate degree from the University of Texas and his J.D. from the University of Texas and his J.D. from St. Mary’s University School of Law. from St. Mary’s University School of Law.

He is a past chair of the ADR Section of He is a past chair of the ADR Section of the State Bar of Texas, and past the State Bar of Texas, and past President of the TAM. He is currently the President of the TAM. He is currently the secretary of the TMCA. John was secretary of the TMCA. John was honored with the Justice Frank G. Evans honored with the Justice Frank G. Evans Award in 2001.Award in 2001.

Ethics – Will you survive the rocks Ethics – Will you survive the rocks underneath the rapids?underneath the rapids?

Ethics – Will they guide you Ethics – Will they guide you through the rapids?through the rapids?

Ethics – Will they drown you?Ethics – Will they drown you?

Ethics – Or will you survive them? Ethics – Or will you survive them?

Ethics – But maybe with a bump on Ethics – But maybe with a bump on the head!! the head!!

QUESTIONS PRESENTEDQUESTIONS PRESENTED

Should mediation be conducted in a Should mediation be conducted in a Vacuum?Vacuum?

Should your approach to mediation be Should your approach to mediation be based on your life experiences, based on your life experiences, education and religious upbringing?education and religious upbringing?

If so, when is it appropriate?If so, when is it appropriate?

JP’S TWO THINGS TO THINK ABOUT• “Don’t be afraid to use your personality,

but don’t be afraid to get out of the way.” Panel Discussion, ADR Section “20th Anniversary and Beyond” October 15, 2007

• “Live your language, and let it be your life.” Ross Stoddard, TMCA 3rd Annual Symposium, November 17, 2007

Vincenzo Girolamo Giorgio Vincenzo Girolamo Giorgio FavaccioFavaccio

Model Standards of Conduct for Model Standards of Conduct for MediatorsMediators

• Adopted Sept. 8, 2005, by American Adopted Sept. 8, 2005, by American Arbitration AssociationArbitration Association

• Approved Aug. 9, 2005, by ABA House Approved Aug. 9, 2005, by ABA House of Delegatesof Delegates

• Adopted Aug. 22, 2005, by Association Adopted Aug. 22, 2005, by Association for Conflict Resolution for Conflict Resolution

Texas Supreme Court Ethical Texas Supreme Court Ethical GuidelinesGuidelines

Adopted by the Texas Supreme Court Adopted by the Texas Supreme Court on June 13, 2005 on Miscellaneous on June 13, 2005 on Miscellaneous Docket No. 05-9107 .Docket No. 05-9107 .

Adopted the State Bar ADR Section’s Adopted the State Bar ADR Section’s Ethical Guidelines.Ethical Guidelines.

““Aspirational”Aspirational”

TMCA Ethical GuidelinesTMCA Ethical Guidelines

►Based on the State Bar of Texas Ethical Based on the State Bar of Texas Ethical GuidelinesGuidelines

►Changed to Mandatory LanguageChanged to Mandatory Language

►Enforced by Grievance ProcedureEnforced by Grievance Procedure

ACR Model Standards of Conduct odel Standards of Conduct for Mediatorsfor Mediators

STANDARD I. SELF-DETERMINATION

STANDARD II. IMPARTIALITY

STANDARD III. CONFLICTS OF INTEREST

STANDARD IV. COMPETENCE

STANDARD V. CONFIDENTIALITY

ACR Model Standards of Conduct for Model Standards of Conduct for Mediators (continued)Mediators (continued)

STANDARD VI. QUALITY OF THE PROCESS

STANDARD VII. ADVERTISING & SOLICITATION

STANDARD VIII. FEES AND OTHER CHARGES

STANDARD IX. ADVANCEMENT OF MEDIATION PRACTICE

STANDARD I. SELF-DETERMINATION

A. A mediator shall conduct a mediation based on the principle of party self-determination. Self-determination is the act of coming to a

voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome. Parties may exercise self-determination at any stage of a mediation, including mediator selection, process design, participation in or withdrawal from the process, and outcomes.

STANDARD I. SELF-DETERMINATION (CONT.)

B. A mediator shall not undermine party self-determination by any party for reasons such as higher settlement rates, egos, increased fees, or outside pressures from court personnel, program administrators, provider organizations, the media or others.

STANDARD II. IMPARTIALITY

A. A mediator shall decline a mediation if the mediator cannot conduct it in an impartial manner. Impartiality means freedom from favoritism, bias or prejudice.

STANDARD II. IMPARTIALITY (CONT.)

B. A mediator shall conduct a mediation in an impartial manner and avoid conduct that gives the appearance of partiality.

1. A mediator should not act with partiality or prejudice based on any participant’s personal characteristics, background, values and beliefs, or performance at a mediation, or any other reason.

STANDARD II. IMPARTIALITY (CONT.)

C. If at any time a mediator is unable to conduct a mediation in an impartial manner, the mediator shall withdraw.

STANDARD III. CONFLICTS OF INTEREST

A. A mediator shall avoid a conflict of interest or the appearance of a conflict of interest during and after a mediation. A conflict of interest can arise from involvement by a mediator with the subject matter of the dispute or from any relationship between a mediator and any mediation participant, whether past or present, personal or professional, that reasonably raises a question of a mediator’s impartiality.

STANDARD III. CONFLICTS OF INTEREST (CONT.)

B. A mediator shall make a reasonable inquiry to determine whether there are any facts that a reasonable individual would consider likely to create a potential or actual conflict of interest for a mediator. A mediator’s actions necessary to accomplish a reasonable inquiry into potential conflicts of interest may vary based on practice context.

STANDARD III. CONFLICTS OF INTEREST (CONT.)

C. A mediator shall disclose, as soon as practicable, all actual and potential conflicts of interest that are reasonably known to the mediator and could reasonably be seen as raising a question about the mediator’s impartiality. After disclosure, if all parties agree, the mediator may proceed with the mediation.

STANDARD III. CONFLICTS OF INTEREST (CONT.)

D. If a mediator learns any fact after accepting a mediation that raises a question with respect to that mediator’s service creating a potential or actual conflict of interest, the mediator shall disclose it as quickly as practicable. After disclosure, if all parties agree, the mediator may proceed with the mediation.

STANDARD III. CONFLICTS OF INTEREST (CONT.)

E. If a mediator’s conflict of interest might reasonably be viewed as undermining the integrity of the mediation, a mediator shall withdraw from or decline to proceed with the mediation regardless of the expressed desire or agreement of the parties to the contrary.

STANDARD III. CONFLICTS OF INTEREST (CONT.)

F. Subsequent to a mediation, a mediator shall not establish another relationship with any of the participants in any matter that would raise questions about the integrity of the mediation. When a mediator develops personal or professional relationships with parties, other individuals or organizations following a mediation in which they were involved, the mediator should consider factors such as time elapsed following the mediation, the nature of the relationships established, and services offered when determining whether the relationships might create a perceived or actual conflict of interest.

STANDARD IV. COMPETENCE

A. A mediator shall mediate only when the mediator has the necessary competence to satisfy the reasonable expectations of the parties.

B. If a mediator, during the course of a mediation determines that the mediator cannot conduct the mediation competently, the mediator shall discuss that determination with the parties as soon as is practicable and take appropriate steps to address the situation, including, but not limited to, withdrawing or requesting appropriate assistance.

C. If a mediator’s ability to conduct a mediation is impaired by drugs, alcohol, medication or otherwise, the mediator shall not conduct the mediation.

STANDARD V. CONFIDENTIALITY

A. A mediator shall maintain the confidentiality of all information obtained by the mediator in mediation, unless otherwise agreed to by the parties or required by applicable law.

1. If the parties to a mediation agree that the mediator may disclose information obtained during the mediation, the mediator may do so.

STANDARD V. CONFIDENTIALITY (cont.)

B. A mediator who meets with any persons in private session during a mediation shall not convey directly or indirectly to any other person, any information that was obtained during that private session without the consent of the disclosing person.

C. A mediator shall promote understanding among the parties of the extent to which the parties will maintain confidentiality of information they obtain in a mediation.

D. Depending on the circumstance of a mediation, the parties may have varying expectations regarding confidentiality that a mediator should address. The parties may make their own rules with respect to confidentiality, or the accepted practice of an individual mediator or institution may dictate a particular set of expectations.

STANDARD VI. QUALITY OF THE PROCESS

A. A mediator shall conduct a mediation in accordance with these Standards and in a manner that promotes diligence, timeliness, safety, presence of the appropriate participants, party participation, procedural fairness, party competency and mutual respect among all participants.

. . . 5. The role of a mediator differs substantially from other professional roles. Mixing the role of a mediator and the role of another profession is problematic and thus, a mediator should distinguish between the roles. A mediator may provide information that the mediator is qualified by training or experience to provide, only if the mediator can do so consistent with these Standards.

STANDARD VI. QUALITY OF THE PROCESS (cont.)

B. If a mediator is made aware of domestic abuse or violence among the parties, the mediator shall take appropriate steps including, if necessary, postponing, withdrawing from or terminating the mediation.

C. If a mediator believes that participant conduct, including that of the mediator, jeopardizes conducting a mediation consistent with these Standards, a mediator shall take appropriate steps including, if necessary, postponing, withdrawing from or terminating the mediation.

STANDARD VII. ADVERTISING AND SOLICITATION

A. A mediator shall be truthful and not misleading when advertising, soliciting or otherwise communicating the mediator’s qualifications, experience, services and fees.

B. A mediator shall not solicit in a manner that gives an appearance of partiality for or against a party or otherwise undermines the integrity of the process.

C. A mediator shall not communicate to others, in promotional materials or through other forms of communication, the names of persons served without their permission.

STANDARD VIII. FEES AND OTHER CHARGES

A. A mediator shall provide each party or each party’s representative true and complete information about mediation fees, expenses and any other actual or potential charges that may be incurred in connection with a mediation.

B. A mediator shall not charge fees in a manner that impairs a mediator’s impartiality.

STANDARD IX. ADVANCEMENT OF MEDIATION PRACTICE

A mediator should act in a manner that advances the practice of mediation. . . .

B. A mediator should demonstrate respect for differing points of view within the field, seek to learn from other mediators and work together with other mediators to improve the profession and better serve people in conflict.

TMCA 14: Agreements in TMCA 14: Agreements in WritingWriting

14. Agreements in Writing.14. Agreements in Writing. A A mediator shall encourage the parties mediator shall encourage the parties to reduce all settlement agreements to to reduce all settlement agreements to writing. writing.

Not-so-Hypothetical-Not-so-Hypothetical-HypotheticalsHypotheticals

HYPO # 1: EXPERIENCE COUNTS OR DOES IT?

You have been asked to mediate a federal court employment dispute based on a Title VII case because you once clerked for the federal judge who will hear the case. A summary judgment motion is pending. Both parties want to know your “best guess” on the likelihood of success of the motion for summary judgment so they can determine the value of the case. What do you do?

HYPO #2: ATTORNEYS’ LITTLE HELPER?

You are serving as a mediator in an age discrimination case. Expert designation deadlines are looming, but both parties want the deadlines to be extended so they can keep costs down and further discuss settlement in the mediation. However, both parties are not from your jurisdiction, and do not know the most expeditious manner in which to move the deadline with the certainty needed to resolve the mediation. You have offered to call the court coordinator, because you know her and know that the issue will be resolved quickly. Now that you have offered, you have second thoughts because you are fearful you might be treading on dangerous ethical waters. Should you proceed or not? If so, how should you proceed?

HYPO #3: DESPERATE LAWYER

You are a mediator in federal employee discrimination case. The employee’s attorney pulls you aside prior to the mediation and says, “my lady is crazy and I need your help to settle this case.” What do you do when you are told this? Should you proceed? Should you tell the client?

HYPO #4: IN MEDIATOR WE TRUST

You have been mediating an employment case all day. The attorney for the plaintiff has begged his client to settle the case and agreed to cut his fee. The plaintiff finally states to all in the room that she believes in God, and since God has brought her to this mediation and that God has put you in her life, and she will trust in your judgment. What do you do?

HYPO #5: PACKING HEAT

You are mediating a hotly contested employee case with two opposing individuals that are both permitted to carry firearms in their profession. You discover after the mediation starts that they are both packing “heat”.

HYPO #6: CHRISTIANS V. WITCHES

You are mediating a case concerning Christian employees vs. a self claimed witch in a coven that supervises the Christians. The witch says in a caucus…do you believe in witches or are you a Christian? You look down at your ring and it has a cross on it.

HYPO #7: THE HANDSHAKE DEAL (OR NO DEAL, THAT IS THE

QUESTION)

You have been asked to mediated a pre-lawsuit employment wrongful discharge case. Neither the employee nor the company are represented by attorneys. The statute of limitations are only a week away. The parties reach an agreement. They shake hands and state they have a deal. Do you offer to draft the agreement; suggest the parties draft the agreement; or let the handshake deal stand?

HYPO #8: ODD MAN OUT

From the outset of the mediation it is apparent that every one involved in the process except on has an instant connection because of commonality of gender, age, or ?? It is equally apparent that the “odd man out” is very uncomfortable. What do you do to achieve a balance or perception of neutrality? What if you as the mediator are the “odd man out??

HYPO #9: GOING IT ALL ALONE

An attorney is late to the mediation, and she suggests that you go over your opening session in caucus with each party. He gives you permission to generally go over your opening session without her being present because she knows your spiel. Assuming all parties have previously requested that they do not want an opening joint session, and you have agreed, should you proceed to give your opening statement in caucus without the attorney present?