New York Dispute Resolution Lawyer
The provocative headline “Judge Orders Preservation of Mediation Notes In Gender Bias Suit Against Proskauer” sparks the topic of this Ethical Compass discussion. What should be done when a lawyer’s litigation strategy collides with a mediator’s ethical standards of practice? There is growing concern by dispute professionals, including this author, that this collision is diluting the benefits of mediation and re-shaping mediation into quasi-adjudicative dispute resolution procedure. Others hear this as a clarion call from litigators to the mediation community to realize that mediation ideals are just that, and will not deflate litigation advocacy strategies. These polarized perspectives present an opportunity for dispute resolution professionals to pause and rethink what the dispute resolution professional might do to realistically align litigator’s interests with mediator ethics. This is a particularly timely discussion as the ABA Section of Dispute Resolution Ethics Committee and Committee on Mediation Guidance consider revisions to the 2005 Model Standards of Conduct for Mediators.