Ethical Codes and the Commercial Mediator

Over at ADR Prof Blog, Michael Moffit posts a PowerPoint presentation by Dwight Golann and Ellen Waldman on Ethical Codes and the Commercial Mediator.

The underlying message is that ethical codes are clear, practice is not - ask any seasoned mediator, they'll say the same in a tired but resigned tone.

Just two of the interesting angles on ethics covered in the slides include;

1. Manipulation vs Reality Testing - including the use of fear - something this blog has attempted to tackle a while back in a post The legitimate use of fear to encourage settlement;

• Giving a slanted opinion - overstating risks - is manipulation.
• What if mediator gives accurate info - but intentionally focuses on a sensitive issue?
• What if disputant wants to settle to avoid a risk that mediator views as unlikely? Is silence OK?

2. Conflicts of Interest - again touched on here at this blog in a recent post 'Get a life' or 'Yeah, right on', with an erudite response by Moffit in his post The Ethics of Mediators Who Party;

• Commercial mediators are hired almost exclusively by lawyers, not clients, and must keep them content or lose business