The Ethical Mediator Friday, January 16, 2009 CPR Annual Meeting

The Ethical Mediator Moderator: Lela P. Love Lela P. Love Panelists: Eric D. Green Eric D. Green Antony Willis Antony Willis Norris Yang Norris Yang

ABA, AAA, ACR Model Standards of Conduct for Mediators European Code of Conduct for Mediators CPR-Georgetown Model Rule of Professional Conduct for Lawyers as Third Party Neutrals Party Self- Determination Mediator Competence Confidentiality Quality of Process Independence and Neutrality/Conflicts of Interest Mediator Impartiality Fairness of Process

An Ethical Dilemma = Clash Between Competing Duties or Principles Situation: Party requests a legal opinion from the mediator … What’s at stake?: Neutrality and Impartiality Self-determination Informed Consent Informed Decision-making Durable Agreements Should the mediator give an opinion on the probable legal outcome?

“Fuzzy” Confidentiality A Mediator’s Practical and Ethical Dilemma ERIC GREEN Should the mediator, if it is necessary to keep the parties at the table, disclose to each party that he believes the other party is prepared to settle in the $ million range? Yes____ No____Maybe____ Copyright 2009 Eric D. Green RESOLUTIONS LLC All rights reserved.

Coaching the Parties Coaching the Parties A Mediator’s Practical and Ethical Dilemma TONY WILLIS Should the mediator give advice about strategy to Defendants to keep the mediation going? Specifically, should he tell the Defendant NOT to make one “take it or leave it” offer? Yes____ No____Maybe____

Thanks, Jeff! Should a mediator sign Fairness Declarations in class action settlements? Should a mediator make promises about whether courts will apply confidentiality or privilege statutes in a particular way? Should a mediator ask parties to sign prospective waivers of liability in her agreement to mediate— even where the mediator is covered by liability insurance?