Yes,
that's right! One mediator down...in Dyersburg!
Read the full decision
here.
A
complaint was made about a Rule 31 family mediator
(an non-attorney mediator) by the attorney representing one of the parties in a divorce
proceeding. It seems that the mediation was not
successful---of course, that's how the disagreeable seeds of a
complaint begin to take root! The mediator terminated
the mediation and wrote his Final Report to the judge who had
referred the case. So far, so good.
The
mediator went one step too far, though, by providing some
explanation to the judge about WHY the parties reached
impasse. He wrote in his report, I experienced some
problems in this mediation which I feel the court should be
aware of
It is my opinion that [one party] cooperated and acted in
good faith. Their settlement offer in light of the evidence
presented to me was reasonable. Lastly, I found that the
[other party] did
not mediate in good faith.
In
other words, it sounds for all the world like one of the
parties agreed with the mediator and one didn't!
The
Commission cited to Rule 31(10)(d), saying: "This section of
the Rule specifically provides that a Rule 31 Neutral shall
'Preserve and maintain the confidentiality of all information
obtained during Rule 31 ADR Proceedings and shall not divulge
information obtained by them during the course of Rule 31 ADR
Proceedings without the consent of the parties, except as
otherwise may be required by law.' The Rule does not
permit the mediator to express his/her thoughts to the court
or anyone else, as to whether parties have mediated in good or
bad faith or allow the mediator to tell anyone what was said
in the mediation."
That
the mediator wrote what he did in his Final Report to the
court constituted a violation of Rule 31(5)(a), which
describes the only things that a mediator can tell a judge
about a mediation: (i) whether both parties appeared and
participated in the Rule 31 ADR Proceeding; (ii) whether the
case was completely or partially settled; and (iii) whether
the Rule Neutral or Rule 31 Neutrals request that the costs of
the neutral services be charged as court costs. The
Commission found that the Rule does not permit the mediator to
tell anything more. In that regard, it was also held
that the mediator violated section 10(d) of the Rule, on
confidentiality of the mediation, to [p]reserve and
maintain the confidentiality of all information obtained
during Rule 31 ADR Proceedings and shall not divulge
information obtained by them during the course of Rule 31 ADR
Proceedings without the consent of the parties, except as
otherwise may be required by law.
We
know from an earlier case,
McMahan v. McMahan, a mediator
can be asked, at least by a judge, to testify about the
actions of a party
to mediation, not their words. In the McMahan case, the mediator was asked whether
or not the wife in a divorce mediation, herself a mediator,
had the capacity to mediate---whether she was in her "right
mind" or was too ill to mediate. The mediator
answered only to the effect that the wife had appeared to be
lucid and was able to sign the agreement to mediate.
In
the ADRC case here, the mediator was suspended because he expressed, in
essence, the content of the mediation. To say that
someone did not mediate in good faith, while the other made a
reasonable offer, is to say too much about the thoughts and
feelings of the parties and to possibly influence the tribunal
about the ongoing dispute.
Procedurally in this matter, the complaint was filed against
the mediator in 12/05** a year after the mediation had
occurred. A hearing before the ADR Commission Grievance
Committee in 3/06, with Response Statements by the Complainant
and Mediator filed in 5/06. Their attorneys then filed briefs
in 9/06, and the full ADR Commission issued its written
opinion (three and a half pages) in 11/06.
**Because the title of the ADR Commission opinion is DECISION
OF ALTERNATIVE DISPUTE RESOLUTION COMMISSION ON GRIEVANCE
FILED JANUARY 3, 2006, and the complaint was dated 12/29/05,
I'm assuming that the complaint/grievance is considered filed
when received by the Commission.