1. Mediation Ethics: Truth, Lies, Integrity & Manipulation ACR-GNY Annual Conference June 16, 2016 By: Simeon H. Baum, Esq. Resolve Mediation Services, Inc. (www.mediators.com) Copyright Simeon H. Baum 2015; Resolve Mediation Services, Inc. 1211 Avenue of the Americas, 40 th floor, New York, NY 10036 (212)355-6527; fax (212) 753-0396; http://www.mediators.com; email:SimeonHB@disputeResolve.comhttp://www.mediators.com

2. Great Philosophers & Ethics

3. Manipulation

4. CARTOON: ETHICS

5. Defining Ethics Not Easy! Moral philosophy: a branch of philosophy that involves systematizing, defending and recommending concepts of right and wrong conduct.

6. Quite a Range Philosophical ethics investigates what is the best way for humans to live, and what kinds of actions are right or wrong in particular circumstances. Meta-ethics (epistemology, meaning, ontics) Normative ethics (actions – good? bad?) Applied Ethics - draws upon ethical theory in order to ask what a person is obligated to do in some very specific situation, or within some particular domain of action

7. Normative Ethics Virtue ethics Stoicism Hedonism Cyrenaic hedonism Epicureanism State consequentialism Consequentialism Utilitarianism Deontology Contemporary virtue ethics Pragmatic ethics Role ethics Anarchist ethics Postmodern ethics

8. What are we trying to do?

9. What do we want from Lawyers?

10. What Are Mediators Trying to Do?

11. Trust

12. What are We Cultivating? Talk & Listening Understanding & Empathy Insight & Empowerment Creativity Realistic Assessment Decision Making Truth & Acceptance

13. What are We Cultivating? Talk & Listening Understanding & Empathy Insight & Empowerment Creativity Realistic Assessment Decision Making Truth & Acceptance

14. Manipulation Talk & Listening Understanding & Empathy Insight & Empowerment Creativity Realistic Assessment Decision Making Truth & Acceptance

15. Our Ethics Follow Our Activities I. SELF-DETERMINATION II. IMPARTIALITY III. CONFLICTS OF INTEREST IV. COMPETENCE V. CONFIDENTIALITY VI. QUALITY OF THE PROCESS AAA/ABA/SPIDR(ACR) MODEL STANDARDS OF CONDUCT FOR MEDIATORS (1994, 2005)

16. 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.

17. STANDARD I : SELF DETERMINATION 1. Although party self-determination for process design is a fundamental principle of mediation practice, a mediator may need to balance such party self-determination with a mediator’s duty to conduct a quality process in accordance with these Standards.

18. STANDARD I : SELF DETERMINATION 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.

19. 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. Q: WHAT IS THIS NOTION OF QUALITY?

20. STANDARD VI: QUALITY OF THE PROCESS 4. A mediator should promote honesty and candor between and among all participants, and a mediator shall not knowingly misrepresent any material fact or circumstance in the course of a mediation.

21. STANDARD VI: QUALITY OF THE PROCESS 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.

22. STANDARD VI: QUALITY OF THE PROCESS 6. A mediator shall not conduct a dispute resolution procedure other than mediation but label it mediation in an effort to gain the protection of rules, statutes, or other governing authorities pertaining to mediation.

23. STANDARD VI: QUALITY OF THE PROCESS 7. A mediator may recommend, when appropriate, that parties consider resolving their dispute through arbitration, counseling, neutral evaluation or other processes.

24. STANDARD VI: QUALITY OF THE PROCESS 8. A mediator shall not undertake an additional dispute resolution role in the same matter without the consent of the parties. Before providing such service, a mediator shall inform the parties of the implications of the change in process and obtain their consent to the change. A mediator who undertakes such role assumes different duties and responsibilities that may be governed by other standards.

25. 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. B. A mediator shall conduct a mediation in an impartial manner and avoid conduct that gives the appearance of partiality. NB: BIAS; NEUTRALITY; SEE ALSO: STD III: CONFLICT OF INTEREST

26. STANDARD IV: COMPETENCE A. A mediator shall mediate only when the mediator has the necessary competence to satisfy the reasonable expectations of the parties. 1. Any person may be selected as a mediator, provided that the parties are satisfied with the mediator’s competence and qualifications. Training, experience in mediation, skills, cultural understandings and other qualities are often necessary for mediator competence. A person who offers to serve as a mediator creates the expectation that the person is competent to mediate effectively.

27. STANDARD IX: ADVANCEMENT OF MEDIATION PRACTICE A. A mediator should act in a manner that advances the practice of mediation…

28. 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.

29. Confidentiality

30. Surrogate’s Court Mediation

31. Original Approach

32. Separation between Court & Mediator

33. 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.

34. 2. A mediator should not communicate to any non-participant information about how the parties acted in the mediation. A mediator may report, if required, whether parties appeared at a scheduled mediation and whether or not the parties reached a resolution…. 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.

35. 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.

37. Reality Testing BATNAs Risk Assessment Transaction Cost Assertion Credibility Deal Doability Move’s Viability Projected Impact

38. You Have a Lousy Case

39. Delivering Bad News Through Message Carrying

40. FUD FACTOR: FEAR UNCERTAINTY DOUBT

41. Transaction Costs

42. Make Peace or Tilt at Windmills?

43. Getting Past Yesterday

44. Handling Emotion

45. ACTIVE LISTENING 1. LISTEN! 2. FOLLOW, RATHER THAN CONTROL, THE COMMUNICATION. 3. LEAVE PLENTY OF ROOM FOR EXPRESSION. 4. USE BODY LANGUAGE CONSISTENT WITH GOOD LISTENING. 5. VALIDATE THE SPEAKER’S ENTITLEMENT TO HIS/HER PERSPECTIVE. 6. SHOW EMPATHY – RECOGNIZE THE EMOTIONS AND MEANINGS THAT HAVE BEEN COMMUNICATED. 7. SEEK CLARIFICATION WITH APPROPRIATE, OPEN- ENDED FOLLOW-UP QUESTIONS. 8. GIVE REFLECTIVE FEEDBACK SUMMARIZING YOUR UNDERSTANDING OF THE PARTY’S STATEMENTS.

46. Sending Messages of Good Will

47. Patience & Perseverance: I Will Not Go Away

48. The Light at the End of the Tunnel

49. Technique of No Technique Character of the Mediator – Communicate & Engender Trust Presence Open Awareness Expressed in Posture, Bearing, Tone, Eye Contact, Omission Sensitive Awareness Deep Listening Flexibility Connectedness, Relatedness

50. Unspoken Message Decent, capable people of good will In this world together Greater force in and embracing us that will work it out if we persist and let it happen

51. Indivisible Character Affecting Atmospherics Gestalt Powerlessness Trusting others Valuing Freedom Letting Go & Embracing Whole Supports Communication & Creativity

52. Wu Wei (Non-doing) Stepping Out of the Way Letting Events take their course, with patience, confidence, open, accepting attention Not Directing or Controlling Events, rather Midwiving Constructive Movement of Larger Forces at Play Holistic Patience Dancing to the Universal Tune

53. Back to Earth Holding One’s Tongue Letting Another Struggle with a Problem & Find Solution Silence Permitting Truthful Expression or Insight Tact Forces in Negotiation Drive Towards Resolution: Risk, Cost, Time, Relations

54. Learning from Water Not Claiming Credit (2) Not Possessing (10) Not Relying on Own Ability (2) Tranquility (57) Simplicity (48, 57) Softness (38) Stitch in Time (63) Fractionating (64) Spontaneous Transformation (37)

55. A Lesson from Tai Chi Push Hands Continuous Relatedness Harmonious Whole 4 ounces of pressure Continuing Adjustment Receptivity Listening for Strength Not Rushing to Caucus Working Through the Knotty Problem

56. The parties ask the mediator for her legal opinion on the issues raised by the case. How should the mediator respond?

57. Lying By Counsel? – Fact? – Law? By Party? How do we handle this?

58. Zealous Advocacy Substitution of Norms of Diligence & Competence The New Lawyer – The Collaborative Practice Model

59. The parties have reached an impasse. The parties ask the mediator to change hats and serve as arbitrator. How should the mediator respond? What should be the response in the converse situation where the neutral was initially engaged as an arbitrator and after the first day of the hearing the arbitrator was asked to suspend the arbitration and instead serve as a mediator?

60. Conflict of Interest?

61. In an introductory caucus, claimant’s counsel threatens to disclose in the context of mediation the marital infidelities, addictions, and sexual predilections of several respondent’s senior executives. What should the mediator do in response, if anything?

62. An unsophisticated party, with unsophisticated counsel, is inclined to accept an offer based on a misunderstanding of the underlying legal principles that severely undervalues that party’s case. Does the mediator have any obligation - ethical or otherwise - to educate that party?

63. Pro Se “I don’t mind your acting as your own attorney, but would you please stop hopping on and off that damned chair?”

70. Not Too Complicated