Mediation as a means of investigation - an ethical question

By Prof. Kimberlee Kovach

You are the mediator in a restaurant franchise case.

It's between Maria Ciarellio, who operates a franchise restaurant called 'Latins in Fittsville' and the franchisor, 'Latins of America Inc' a Delaware corporation, and its international parent 'Latins Ltd' in Italy. Latins has franchised its restaurants which serve Latino (Italian, Spanish, Portuguese, and South American) cuisine.

The parties signed a franchise agreement a year ago and while initially all went according to plan the franchisee, Maria, has voiced several complaints of late.

These range from claims that the food did not taste as promised or the way it did during the induction classes to a lack of support and bad advertising advice.

Once you gather the general information, you meet privately with the parties. You very soon learn that one – and perhaps the only – reason that Maria was ‘courted’ as a franchisee was that she had exceptional creativity in innovative design and presentation of food.

While she seemed to the franchisor to lack the self confidence to venture out on her own, Latins thought that it could profit from her ideas.

It's clear to you that the only reason they have come to the mediation is to pick Maria's brains and find out what additional possibilities exist for expansion of their franchising ideas and for new creations in “neuvo-latin” fare.

In the context of brainstorming possible creative resolutions, Latin’s lawyer has requested that you facilitate a joint session/face-to-face discussion with Maria.

While ostensibly for the purpose of exploring options to address Maria's complaints, you are certain that this is Latins' way to find out more information about her plans and ideas.