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A mediator's conflict of interest
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In the legal world, we have a special term—and accompanying rules—for the situations in which a lawyer’s representation of a client could be compromised by the lawyer’s relationship to another person. It’s called “conflict of interest.” In the mediation world, however, there is little that formally resembles this concept.
Conflicts of interest issues are significant in the mediation context in that a conflict of interest can undermine a mediator’s impartiality and potentially compromise the mediator’s duties of confidentiality. Regardless of whether the conflict of interest relationship substantially relates to the mediation, any connection to either of the parties could serve to undercut the mediator’s job, the parties’ trust in the mediator and ultimately the outcome of the case.
While there are some conflict of interest rules in the mediation context, they are not uniform across the U.S., and most simply refer to lawyer-mediators, as they are included in their rules of professional conduct. States, professional organizations, and courts have all promulgated various rules governing mediator conduct in a conflict of interest situation. In Washington state, for example, the State Rules of Professional Conduct were amended in 1993 to include lawyer-mediators under the conflict of interest provision. Other states have more comprehensive conflict of interest rules for attorney-mediators that acknowledge the unique role that the lawyer-mediators play in mediation. But these just don’t seem good enough.
Formulating rules that provide clear protections for parties against conflict of interest problems is not only in the best interest of those who choose to participate in the mediation process but also significant in giving mediation a form of legitimacy and standardization. The legal profession has a conflict of interest rule to protect parties, and mediation needs to have such a comprehensive rule as well, to cover the various circumstances that are unique to mediation. Simply using the Professional Rules of Conduct, developed for lawyers practicing law, is simply not the answer to this ethical problem, and is certainly under-inclusive.
The question that remains then is what kinds of conflict of interest standards are appropriate. Practitioners should engage in conversations with one another about the type of conflict of interest rule that would be both effective and fair, while upholding the power of the parties to make their own decisions as to who they would like to mediate their dispute.
Read more about mediation at: http://www.examiner.com/x-28098-SF-Workplace-Mediation-Examiner
