Mediator v. Arbitrator:
Disclosure and Other
Ethical Issues
Panel: A. Stephens Clay, Kilpatrick Stockton, LLP
Jeff Kichaven, Independent Mediator
Dr. Karl J. Mackie, Centre for Effective Dispute
Resolution
Moderator: MaryBeth Wilkinson, Lovells LLP
Scenario: Mediation of Class Action



Defendant agrees no objection to Class
Counsel Fee Application
Settlement on “claims made” basis with
potential reversion to defendant
Mediator asked for “Fairness
Declaration” (re: absent class members)
• Ethical to so swear ?
CPR Mediation Procedure

Ground Rules (3)(j)
• Unless agreed in writing…mediator
disqualified as a “witness, consultant or
expert” in pending or further action relating to
subject matter

Confidentiality (9)
• Unless agreed, mediator shall not disclose
(including to any judicial officer) any
information regarding the process…
What Do We Value In Mediators?

Evaluative vs. Facilitative
What Do We Value In Mediators?

Evaluative vs. _________
What Do We Value In Mediators?

Evaluative vs. Skilled
What Do We Value In Mediators?

________ vs. Skilled
What Do We Value In Mediators?

Status vs. Skilled
What Do We Value In Mediators?
The “Status” Mediator
What Do We Value In Mediators?
The Skilled Mediator
The Mediator’s Skill

Creating an environment
in which participants can
achieve results they never
before imagined.
Scenario: Free Labor?

Is it ethical for CPR Members to ask a
Mediator to work for free?
• Form – CPR Model Agreement – (D)
Compensation
• “The Mediator shall be
compensated for time extended
in connection with the Proceeding
at the rate of $_____...”
Scenario: Mediator then Arbitrator?

CPR Mediation Procedure
• (3) Ground Rules
• (K) “…the mediator shall not serve
as an arbitrator unless the parties
and the mediator otherwise agree
in writing”
Scenario: Mediator then Arbitrator?

CPR Code of Ethics for Arbitrators in
Commercial Disputes
• Comment to Canon 1
• “…Arbitrators do not contravene this Canon if, by virtue of
such experience or expertise, they have views on certain
general issues likely to arise in the arbitration, but an
arbitrator may not have prejudged any of the specific
factual or legal determinations to be addressed during
the arbitration.”
CEDR
CEDR Rules for the
Facilitation of Settlement
in International Arbitration
www.cedr.com
Scenario: Hanky Panky on Arbitration Panel

CPR Code of Ethics for Arbitrators in
Commercial Disputes
•
•
•
Note on Neutrality: “This Code expects all arbitrators…to
preserve the integrity and fairness of the process.”
Canon 1 (D) “Arbitrators should conduct themselves in a
way that is fair to all parties…”
Canon 1 (H) No withdrawal “unless compelled to do so by
unanticipated circumstances that would render it impossible
or impractical to continue…”
Scenario: Hanky Panky on Arbitration Panel

CPR Code of Ethics for Arbitrators in
Commercial Disputes
•
Canon VI (B) “The arbitrator should keep confidential all
•
matters relating to the arbitration proceedings and
decision…”
Canon VI (C) “…it is not proper at any time for an arbitrator
to inform anyone about the substance of the
deliberations…”
Scenario:
Allegations of Bias & Threatened Litigation

CPR Mediation Procedure
• Ground Rules (3)(m) – No liability
except “willful misconduct”
Scenario:
Allegations of Bias & Threatened Litigation

CPR Mediation Procedure
• Form – Future Relationships (C)(2) –
Mediator will not work for or against a
party for six months after serving.
Thank you!
Mediator Training
Interview with US District Judge Barbara Rothstein (W.D. Wa), Director of
the federal Judicial Center. The Federal Lawyer, October, 2009
Q: Many newly appointed federal judges have had no previous experience on the
bench. Does the FJC have any programs that can help them make the transition
from practitioner to judge? If so, what is the focus of these programs?
A: Yes, we invite new district, bankruptcy, and magistrate judges, respectively, to
attend two orientation seminars during their first year on the bench: (1) a seminar
held for small groups of new judges and (2) a program for groups of about 30
judges at our education center in Washington, D.C. The curriculum differs, of
course, for each type of judge, but in general the seminars focus on acquisition of
skills unique to judging: trial management, calendar management, judicial ethics,
opinion writing, and, for district judges, the criminal sentencing process.
Substantive law covered during the orientation process is limited to complex areas
of statutory and constitutional law that arise frequently in federal litigation (such as
employment discrimination and habeas corpus for district and magistrate judges).
Mediator Training
Q: Your Education Division provides continuing education for judges. What
kind, and where does this training take place?
A: Most education programs for judges are presented in person in order to facilitate
discussion. We develop our programs and written materials in consultation with
advisory committees of judges, and we emphasize practical skills and new
developments in the law. In addition, every 12 months, we conduct a series of national
or regional workshops for district, bankruptcy, and magistrate judges, respectively.
National programs for appellate judges are held every three years. These programs
cover a broad range of legal topics and judicial skills, usually including new legal
developments, case management techniques, updates on ethics, and less traditional
subjects such as legal history or science and technology. We also conduct annual
programs for chief district judges on leadership and management.
The Federal Judicial Center offers smaller seminars in such fields as intellectual
property, employment law, environmental law, and law and technology, as well as a
skills-based program in mediation. These two- to three-day programs are presented to
district and appellate judges, bankruptcy judges, or magistrate judges at locations
around the United States, often in cooperation with law schools and other institutions.
Definitions

Learning Curve
•
Frequently a "learning curve" is used to describe the effort required to
acquire a new skill (e.g., expertise with a new tool) over a specific
period of time. If it's a complex task requiring you to reorient your way
of thinking as with learning new software, what makes it a "steep
learning curve" is the mental strain of comprehending a new language
rather than the time or physical effort involved. The effort to achieve
significant progress and sufficient skill to start using a tool may be
fairly predictable, but achieving real mastery requiring much more
time, effort and making original discoveries about its use. Often
learning brings one to an "impasse", only resolved by a seemingly
radical intuitive change in direction, an "ah-ha moment" or
"breakthrough" representing "S" curve learning of a different kind and
on a different scale. (Wikipedia, Learning Curve,
http://en.wikipedia.org/wiki/Learning_curve , emphasis supplied.)
Definitions

Sunday Driver
• – noun, a person who drives a car inexpertly,
esp. slowly or overcautiously, in the manner
of one who drives infrequently.
(Dictionary.com)