No Mediation Communications Without Representation: Private Communications Between Mediators and Represented Parties

By Jacqueline Bashaw Fairweather and Leslie A. Berkoff1

Mediation is often praised for its many advantages. It offers increased confidentiality, candor and flexibility; a greater sense of control and collaboration; and inexpensive, efficient and customized resolutions.2 Parties to mediations even report higher satisfaction than those who go to court.3

Mediation enjoys these advantages in part because it is free from the confines of formal adjudication processes. Many judges face significant case backlogs that prevent efficiency.4 On average nationally, it takes a little over two years for a filed civil case to go to trial,5 while a mediator might be more readily accessible. Similarly, without strict litigation procedural rules, discovery can be streamlined and communications with lawyers can be direct, thus saving time and money. Mediation can also reduce the stress that litigation may impose6 and provide emotional closure in unique and creative ways that are not usually available through litigation.7

For all of its flexibility, mediation is not a lawless land. A few of the strictures of litigation still serve as important procedural guardrails for mediators and the mediation process.

One such stricture of litigation is that judges typically communicate with litigants only with and through attorneys.8 Judges seldom speak privately with litigants and do so only carefully when extraordinary circumstances warrant such an action. Attorneys typically serve as intermediaries between the judge and litigant.9 Accordingly, Model Rule of Professional Conduct 1.2 states that “a lawyer shall abide by a client’s decisions concerning the objectives of representation and ... shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation.” This relationship ensures that the client’s priorities are — and remain — paramount. The litigant explains their goals to their attorney, who then may litigate or take other steps to advance those goals.

There are good reasons that judges do not communicate privately with litigants without counsel present,10 and those reasons apply in the context of mediation when parties are represented by counsel.11 This article explores these concerns — five practical and three ethical — that warn a mediator against speaking to a client without an attorney present. Through this analysis, mediators, attorneys and represented parties in mediations will enjoy a clearer sense of mediation’s limitations and liberties.

Let’s first explore what practical problems can arise when a mediator speaks directly to a represented party without their attorney present. For the sake of clarity, the term “client” will be used to refer to represented parties in a mediation.

Speaking to a client can seem to be a practical or expedient option at times. The mediator and client do not have to waste time or money waiting around for the attorney, and the client may enjoy a greater sense of control over the conflict at hand, building a rapport with the mediator and confidence in one’s own abilities. This would seem to be in line with the benefits of mediation, but engaging on this path is fraught with peril. Let’s first consider the practical issues that can arise.

Attorneys Might Receive Misinformation

If a client receives information from the mediator, they must relay that information to their attorney, but important details can be miscommunicated. Clients are generally not as well versed in legal issues as attorneys, so it is likely that a client might not appreciate all the nuances of the information relayed to them and might not clearly relay every important detail to their attorney.

Important Information Might Be Lost Entirely

Similarly, key information could be lost entirely, resulting in the client inadvertently failing to convey all information to their attorney. As a result, decisions could be made absent complete information.

Further, an important aspect of the attorney/client relationship is that attorneys have a duty to communicate, advise and inform their client12 — but clients do not have such duties. An obstinate or distrustful client could decide not to share pertinent information with their attorney, thus creating conflict and confusion.

Attorneys Cannot Verify and Evaluate the Information Relayed by the Mediator

In a mediation, attorneys are still responsible for conducting some discovery and legal research to ascertain the strength of each party’s position.13 If the mediator conveys information directly to the client, the attorney is not in a position to deploy expertise to assess the facts or law, and he or she certainly cannot uphold their duty to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”14

For example, a mediator could innocently opine that in previous mediations they have never seen the opposing party settle for more than $5,000. A client may hear this and assume that the mediator thinks they should just accept a lower offer, whereas an attorney could objectively distinguish this comment and potentially evaluate whether the mediator may perhaps be too aggressive in their assessment of the facts.

Attorneys Cannot Verify and Evaluate the Information Relayed by Their Client

Without the client having the guidance of counsel, a client may misstep and overshare information or strategic positions with the mediator. The mediator, seeking resolution, may then convey this to the other side, compromising the client’s ability to achieve a more favorable resolution (or any resolution at all) than if the sharing is done on the advice of counsel.

Clients Might Make Important Decisions Without Proper Reflection

As in litigation, an attorney’s client in a mediation is the ultimate decision-maker. While attorneys counsel clients to attain outcomes they are satisfied with, they cannot accept offers without the client’s authorization.15 Thus, it would seem logical that a mediator could relay a counteroffer directly to the client.

However, the client should still secure the input of counsel before deciding whether to accept such an offer, so that they can consider all options. Without such counsel, the dynamic of advocacy that the attorney brings to the table, and that could achieve an enhanced outcome, is diluted — if not eliminated. For all these compelling practical reasons, a mediator should generally avoid communicating directly with a client without counsel present, especially on substantive issues.

The Ethics Side of the Situation

Several weighty ethical concerns further demonstrate that this is generally the best approach.

Mediators May Puff or Exaggerate to Obtain a Settlement

While of course a mediator should uphold the highest ethical standards, it remains true that without counsel present, a mediator may feel more comfortable overstating things to obtain settlement. Mediators often care about obtaining settlements both on personal and professional levels; these motivations could lead mediators to stray from their strict ethical duties, particularly when other attorneys are not present who may more readily recognize such behaviors.16 Without an attorney present, the client might feel unduly influenced by the stature or demeanor of the mediator or compelled by results-oriented representations to accept resolutions they otherwise would not.17

Clients Might Lie to Obtain a Settlement

Similarly, without their attorney present, the client might also feel more comfortable puffing or lying to the mediator. This ethical issue can easily be avoided by ensuring that the client’s attorney is present.18 Beyond intentional misrepresentations, having their attorney present can also minimize unintentional misrepresentations that arise when clients are not sufficiently specific or clear.

Mediators Might Not Appear Impartial or Candid

It is important for mediators to act and appear impartial, and to “promote honesty and candor between and among all participants” to a mediation.19 Mediators who communicate with clients without their attorneys present might risk jeopardizing this appearance of impartiality and promotion of candor — even if the communications themselves are not suspect. The attorney for that client might question the mediator’s ex parte intervention, as may the opposing party and their respective attorney. Such a decision can hurt parties’ confidence in the mediator and mediation process, limit parties’ and attorneys’ willingness to participate in the process honestly and candidly, and lead to speculation that a mediator may have lost impartial distance, overreached, or even unduly influenced a client or made them feel under some pressure or duress.20

Should a mediator subsequently face accusations of a lack of impartiality or candor, the mediator can only rely on their word and the client’s word to refute such accusations. Instead, the mediator should ensure that attorneys are present when speaking with represented clients. Attorneys can vouch for what was or was not said, and can refute such accusations or discourage unsupportable attacks. Their word also will likely carry more weight than the client’s given their familiarity with the issues and their professional duty to speak truthfully.21

These ethical considerations are serious and should generally counsel mediators against speaking with clients when their attorneys are not present. Mediations should be calculated to minimize litigation and prudently structured to avoid legal assaults on the mediator or the consensual resolution achieved. The rapport built or settlements obtained, perhaps more quickly than usual, are simply not worth risking the ethical and relational integrity of the mediation process.

Conclusion

While at times it is tempting to excise counsel from the process, be it for expediency, perceived efficiency or temperament, the practical and ethical concerns identified herein caution strongly against such a practice.

Jacqueline Bashaw Fairweather is a term law clerk to Hon. James J. Tancredi of the U.S. Bankruptcy Court for the District of Connecticut in Hartford. Leslie Berkoff is a partner with Moritt Hock & Hamroff LLP in New York and chairs the firm’s Dispute Resolution Practice Group.