Gracie_Fields_entertains_airmen_during_WW2

Mediators Can Attend Christmas Parties

December 19, 2007

              

          [Image: Gracie Fields, accompanied by an RAF orchestra, entertains airmen at their Christmas party, December 27, 1939.  Photo by Royal Air Force official photographer, Mr. H. Hensser.]

          I write this in anticipation of attending two separate Christmas parties at the invitation of friends who are also potential sources of referrals for my mediation and other ADR services.  It follows my reading Geoff Sharp\’s recent post on whether attending such events creates an ethical dilemma for a mediator when the party\’s host is a “repeat user” of mediation services.  He points to an article by John Lande entitled “Lawyers\’ Routine Participation Directs Shape of Liti-Mediation” for a longer discussion of this issue.  Others have since weighed in with comments which generally suggest that a mediator should have “ethical concerns” about attending such parties, if for no other reason than “the appearance of impropriety”.
          As Geoff Sharp suggests, one could dismiss this concern as “ridiculously politically correct”, or more accurately perhaps, a classic case of “navel gazing”, but this would trivialize what I think is a real problem affecting many mediators.  Let\’s get right to the point.
          Mediator neutrality is not just an ethical obligation, it is at the essence of what mediators do.  First and foremost, good mediators are neutral.  If you can\’t be neutral, and you can\’t convince the parties and their counsel that you have been neutral, you shouldn\’t be in this line of work.
          This debate is not really about Christmas parties, but about what Professor Lande calls the risk that “continuing relationships between lawyers and mediators can result in mediator bias.”  His suggestion is that anytime a mediator views a lawyer as a source of future business, that lawyer\’s client has an advantage in the mediation.  I would agree that the client might have that advantage, or an advantage created by any number of other factors that could potentially affect the mediator\’s conduct (“consciously or unconsciously”).  But a large part of being a mediator is having the ability to recognize the potential for such influences, and to deal with them effectively, whether by declining the case, disclosure or appropriate reflection and self-discipline. 
          The notion that repeat referrals from lawyers cannot be ethically accepted assumes the worst about the mediator, both ethically and with respect to his or her competence.  Moreover, it denies the parties\’ right to self determination of the process, and as a practical matter, makes it very difficult for the parties to obtain mediator subject matter expertise.  In my world, and I suspect many others, there are relatively few lawyers representing most of the clients  who are likely to be repeat users of  mediation services.  There also are relatively few mediators  with subject matter expertise available to serve those clients.  Requiring mediators with subject matter expertise to decline repeat users (whether lawyers or their clients) is to effectively prohibit a viable mediation practice.
          Most law firms rely heavily on “repeat users”; that is, they cultivate and maintain broad and long lasting relationships with their clients.  Law firms must represent these clients in accordance with numerous ethical mandates that often require some action contrary to their clients\’ interests.  This has never caused lawyers to believe that they should decline “repeat business” for fear of doing something unethical in order not to displease such clients.  Nor should they.  Part of being a good lawyer is knowing how and when to tell your best client that you can\’t and won\’t do something you think is unethical – even if it means losing the client.  Why as a profession do mediators think so much less of themselves? 
          I don\’t, and that\’s why I plan to go to both of my Christmas parties.  In fact, I will likely talk to potential “repeat users” at those parties about what it is that I can do for them as a mediator.  The first thing I will tell them is that they will get no special treatment from me, and that if they have a mediator who can be unduly influenced by a beer, a cocktail wiener or  a “repeat user,” they should find another mediator.