Mediation Notes, August 2019
Avoiding Violence in Mediation: Sit Close to the Door!
by David W. Henry, Esq.
Over the years there have been well-publicized incidents of violence at mediations in Florida and elsewhere.* Mediations can give rise to heated exchanges, arguments and threats. Early in my career, while defending a defamation claim, I had a much older lawyer take some threatening steps toward me and actually say, “I ought to kick your ass.” We were mediating in the courthouse, and the mediator had stepped out of the room. Fortunately, we were able to diffuse the situation.
In mediator training school many years ago, my instructor said that when you are mediating, sit next to the door. We thought he was joking, but he was not. He followed up by saying mediators have an obligation to safeguard the process, but the process ends when you see a weapon. “If you see a gun, run.” The mediator is not obligated to play sheriff.
It is incumbent upon counsel to identify the potential for problems and communicate them to the mediator. If there is long-simmering animosity, we can dispense with the joint opening session. What if there is yelling or verbal abuse between participants or lawyers during the mediation that was not anticipated?
The ethical rules for certified mediators in Florida speak to all of this. One of the laudable elements of mediator certification is presumably knowledge of the rules governing the process. The mediation rules speak of duress that can impact informed decision-making or self-determination. When someone is having a breakdown and says, “I feel like I have no choice,” we are in the danger zone. When people begin to sob and cry, we need to assess the situation. Is this fixed by a few tissues and a trip to the washroom, or is a more serious situation emerging that warrants suspension of the mediation? These problems can arise in disputes between relatives and family members, estranged business partners, cases involving children, and other circumstances too numerous to mention here. Cases involving wills and estates are frequently contentious. Not surprisingly, already dysfunctional family relationships are not improved by participation in the legal process or the pressure of trying to negotiate in mediation.
When does emotional upset or inappropriate behavior justify suspension of the mediation process? The simple answer is when the mediator believes someone’s judgment and thinking is likely affected by emotion, language, threats, tension or hostility. The mediator has responsibility for ensuring the integrity of the process and the unfettered authority to suspend the mediation at his or her sole discretion. See Florida Rules for Certified and Court-Appointed Mediators, Rule 10.300 (Mediator’s Responsibility to the Parties) and 10.310(d)(“If for any reason a party is unable to freely exercise self-determination, a mediator shall cancel or postpone a mediation.”).
My engagement agreement calls upon the attorneys or unrepresented parties to communicate with one another in advance of mediation. There may be a concern over individual attendees or if we might consider dispensing with opening statements in a joint session. I may explore why the parties think they cannot sit in the same room together during the joint session. That information may give me insight into larger problems that affect decision-making or tell me something about the motivation to litigate. Sometimes the issue may involve generational conflicts between parents and siblings, and that terrain is too jagged to navigate. So I leave it alone. Some problems are not easily brooked in a one-day mediation.
Reframing the dispute in a way that insulates a party or diverts the attention away from hot-button issues will be important. If the mediator knows the dynamics in advance, he or she can be sensitive to underlying emotional and psychological factors that influence decision-making, and better navigate the sea of emotional turmoil that sometimes arises during the mediation process.
*On January 30, 2013, at 10:45 a.m., Arthur Douglas Harmon, III, 70, armed with a handgun, began shooting during a mediation session in the Osborn Maledon law firm in Phoenix, Arizona. Two people were killed; one was wounded. The shooter later committed suicide at another location. A history of domestic abuse can create problems for participants and power imbalances that threaten one’s right to self-determination. The problem is not a new one. See generally, M. Treuthart, “In Harm’s Way, Family Mediation and the Role of the Attorney Advocate,” 23 Golden Gate Univ. L/R. (1993)
The material in this newsletter has been prepared for our readers by David W. Henry, shareholder at Marshall Dennehey Warner Coleman & Goggin. The views of the author do not necessarily reflect the views and opinions of Marshall Dennehey Warner Coleman & Goggin, and the newsletter is not intended to provide legal advice for a specific situation or to create an attorney-client relationship.
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