Ethical/Moral Obligations of a Mediator: The Issue Regarding the Disbarred Attorney Participant…

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So, our issues begins…. A Mediation was scheduled regarding a Circuit Civil matter. All of the noticed parties were present, the mediator, Plaintiff’s Counsel (“PC”),a Plaintiff’s corporate representative (“PR”) with “full authority” to settle, and the Defendant. Before commencing the mediation, the Defendant stated that they recently retained counsel, who will be filing notice of appearance with the Court, so she would like to wait for them to participate in mediation as they are on their way. The mediation conference was scheduled to start promptly at 1:30 pm. The PC and PR stated that they did not mind, so it was decided to wait for the Defendant’s Attorney (“DA”). After 20 minutes, the(“DA”) still did not arrive, but called twice saying they were delayed during the lunch-time traffic. In the effort to move the mediation forward, all the parties agreed to proceed with the DAparticipating via telephone, until he arrived physically. When the DA eventually arrived, now 45 minutes late, he was updated as to the mediations progress. Throughout the mediation process, the DA was uncooperative, disruptive at times, and constantly stated his position not to concede to anything and to leave the mediation. Although the process was contentious, the case was settled, drafted, and signed by the parties and their counsels. After the mediation ended,it was observed that the DA was overly friendly with one of the paralegals and support staffemployees within the office assisting with copies. So, after everyone left, the mediator asked the paralegal if she knew the DA involved in the mediation. The paralegal timidly nodded, smiled and suggested that the mediator conduct a name search on the Bar’s website. The search revealed that the DA had been recently disbarred. Here are just a few of the many issues/questions that we as Mediators must consider.

 

  1. Is the mediation settlement agreement valid?
  2. Given this circumstance should the mediator obligated to ensure a Notice of Appearance was appropriately filed? What about a mediation participant’s right to self-determination?
  3. Does the mediator have an obligation to inform the Defendant that their attorney, who was not helpful during the process, has been disbarred?