Alternative Dispute Resolution Issue - Contra Costa County Bar ...

procedure available to deal with theannounced “no authority” position?Unfortunately, under current Californiastatute and case law (not being able toreport to the court [Evidence Code §§1119and 1121] and being incompetent totestify [Evidence Code §703.5]), mediatorsare left with no means to resolve theethical conflict, leaving the ability to aidresolution of the case as a standoff.Another area of ethical conflict involvesthe maintenance of confidentiality in casesinvolving illegal actions of parties. Onemight easily imagine being asked to mediatenegotiations between a bank robberor terrorist, his / her hostages and police(think Al Pacino in Dog Day Afternoon).Clearly, an unfair settlement is shapingup, an imbalance of power. The emotionalityof the process and the probability ofharming parties or innocents if an agreementis not reached could rise or fallbecause of confidential information that isor is not disclosed, or which is improperlydisseminated, albeit with good intentions.Not reaching agreement in such a circumstance,thereby not solving the parties’problems, increases the probability ofharm to parties/innocents. The mediator’shands in solving the ethical/moral conflictthat arises are tied by the confidentialityprovisions of California law.Consider a more common scenario: thegovernment exercising its right of eminentdomain to demolish the home of a poorperson (that cannot be replaced in thecurrent market or even in a good market)to build a shopping center proposed by abillionaire developer, taking property forpersonal gain of the developer’s privateinterest. The mediator is presented anethical conflict when one counsel insistson non-disclosure of the settlement (nondisclosuremay convince a party to acceptthe proposal) and the government musthave it publicly approved.Ethical conflict situations face mediatorsevery day in common practice as aresult of emotional reactions to partybehavior at mediation (sympathy, antipathy,anger); lack of informed consentbetween parties and their counsel due toparty ignorance of factual, legal or expertinformation; coercion or mental disturbance— all matters typically unknown tothe mediator. One typical situation leadingto such conflict: a mediator sees an attorneywithout specific “practice knowledge” whohas had a dispute with the client over whatthe client wants out of mediation. Maybea worker compensation specialist doing afavor for a friend or family member ishandling an employment case. The lack ofemployment practice expertise may leadto the otherwise competent counsel notbeing able to properly analyze the case,resulting in the client attending mediationwith unreasonable expectations.Similarly, an “out of practice area”attorney advises the mediator for the firsttime at the mediation session of a realestate case that he “never talks about uContra Costa Lawyer 19