DRC Advisory Opinions and Policy
To provide guidance to mediators.
Advisory Opinion Policy
The Commission appreciates that mediators sometimes need assistance in interpreting the Standards of Professional Conduct for Mediators or program rules and applying them to ethical or other dilemmas that may arise in the course of a mediation practice. In an effort to provide guidance, the Commission has adopted its Advisory Opinion Policy. The Policy provides:
- For mediators to contact Commission staff, when time is of the essence, to obtain informal guidance in response to Standards and rule interpretation questions. The discussion and any guidance provided will be logged in for reference in the event should be complaint is filed; and
- For mediators to seek formal Advisory Opinions from the Commission in response to ethical or rule interpretation questions/dilemmas that have arisen in connection with mediation practices. Advisory Opinions issued to date are posted on this website.
Summary of Advisory Opinions
Full text of Advisory Opinions
Mediator Request for Advisory Opinion Form
| Advisory Opinion Number | Summary of Advisory Opinion |
| AO 43 (2022) | Mining Metadata and Recording the Conference, Rule 4 The mediator or a party to a mediated settlement conference shall not mine metadata from a mediated settlement conference or record the mediated settlement conference. |
| AO 42 (2021) | Settlement Authority and Signing the Agreement, N.C.G.S. § 7A-38.1(l) When a party is absent from a mediation, the mediator shall inquire about settlement authority at the beginning of the conference. When a party is not physically present, the mediator shall verify any designee signing an agreement has written authority to do so. |
| AO 41 (2021) | Notifying Lienholders, Rule 4(b) The mediator does not owe a duty to a lienholder unless the lienholder becomes a participant in the mediated settlement conference. Under the Rules for Mediated Settlement Conferences and Other Settlement Procedures in Superior Court Civil Actions, Rule 4(b), the attorneys or parties shall notify the lienholder of the scheduled mediation. |
| AO 40 (2020) | Mediator Accepting Role as a Parenting Coordinator, Standard 7 A mediator shall not serve as a Parenting Coordinator for parties after mediating the same cause of action for the parties. |
| AO 39 (2018) | A Mediator’s Duty, Rule 6 Mediators shall actively and effectively manage their cases by scheduling and holding the mediated settlement conference and by timely filing the Report of Mediator. |
| AO 38 (2018) | Exclusion of Evidence of Negotiations in Separate Proceeding, N.C.G.S. § 7A-38.4A Evidence of offers made and rejected during a mediated settlement conference may not be introduced in support of a motion for attorney’s fees in the same action. Such a motion is a “proceeding in the action” and therefore, evidence of statements made in the conference is barred by N.C.G.S. §7A-38.4A. The use of the mediator’s notes is also barred by the statute. |
| AO 37 (2018) | Designation of Mediator, Rule 2(a) Only a party, or a party’s counsel, may complete the Designation of Mediator form. A mediator shall not pre-populate a Designation of Mediator form with their information and distribute the form to the parties or their counsel. |
| AO 36 (2018) | AO 36 has been archived September 20, 2024; Substantive content included in AO 33. |
| AO 35 (2018) | AO 35 has been archived September 20, 2024; Substantive content included in AO 42 and AO 24. |
| AO 34 (2018) | Mediator Conducting Simultaneous Mediations and Billing Full Rate for Each Mediation, Standard 7 A mediator shall not conduct simultaneous mediations and bill their full rate for each mediation. |
| AO 33 (2016) | Gift Giving, Standard 7(h) A mediator shall not give or receive a gift to or from a party or representative of a party in return for a referral or due to an expectation of referral of clients for mediation services. |
| AO 32 (2016) | The best practices for a mediator conducting a mediated settlement conference where at least one participant is a non-English speaking self-representing party are defined within the AO. |
| AO 31 (2015) | Reducing an Agreement to Writing When One or More Parties are Self-Represented, Standards 4, 5, 6 and 8 Mediators may not prepare a settlement agreement for self-represented parties but should facilitate the parties having an attorney prepare a settlement agreement. |
| AO 30 (2014) | Mediator Testimony in Hearing on Motion to Enforce Settlement, N.C.G.S. § 7A-38.1(l) A mediator may not testify or produce evidence in a proceeding to enforce a mediated settlement agreement, regardless of whether there is an objection to such evidence, except “to attest to the signing of any agreements.” Such testimony or evidence is barred by N.C.G.S. § 7A-38.1(l). |
| AO 29 (2014) | Testimony in Related Criminal Proceeding, N.C.G.S. § 7A-38.1(l) N.C.G.S. § 7A-38.1(l) bars the admission of statements made and conduct occurring in a mediated settlement conference “in any proceeding in the action or other civil actions on the same claim.” A criminal proceeding related to the mediated claim does not fall under the inadmissibility provisions of the statute, and therefore such evidence may be admitted in the criminal proceeding. |
| AO 28 (2013) | Preparing a Separation Agreement of Other Settlement Document, Standard 6 Mediator may not prepare a separation agreement or other settlement document nor file a court action for either or both of the parties. |
| AO 27 (2013) | Scheduling the Conference and Inability to Pay, Rule 6(b)(5) and Rule 7(e) Mediators have a duty to schedule and hold a settlement conference without engaging the parties in discussion about their ability to pay. |
| AO 26 (2013) | A mediator conducting a mediated settlement conference where a participant has filed a notice of appeal shall contact court staff only as to whether the matter is stayed upon appeal. |
| AO 25 (2013) | Attendance at a Mediated Settlement Conference by an unrepresented Corporation, Rule 4 The mediator is not required to police the attendance issues and may allow an unrepresented corporation to participate and attend a mediation under Rule 4. |
| AO 24 (2013) | Attendance at a Mediated Settlement Conference by an Out-Of-State Attorney Representing a Party at the Mediated Settlement Conference, Rule 4 The mediator is not required to police the attendance issues and may allow parties not required to attend under Rule 4 to participate and attend a mediated settlement conference. |
| AO 23 (2012) | Mediator Testimony in State Bar Disciplinary Proceeding, N.C.G.S. § 7A-38.1(l) Absent a subpoena, a mediator may not speak to a State Bar investigator concerning conduct occurring during a mediated settlement conference by an attorney whose client has filed a grievance against the attorney. However, pursuant to an exception set out in N.C.G.S. § 7A-38.1(l), the mediator may be compelled to testify in a disciplinary proceeding before the State Bar. If a State Bar investigator contacts a mediator about the attorney-mediator’s own behavior, the mediator must respond, with certain exceptions relating to lawyer-client confidentiality, to the investigator’s questions, even when there is not a subpoena. |
| AO 22 (2012) | Duty of Confidentiality Applies to Mediator Only, Standard 3 Standard 3 of the Standards of Professional Conduct for Mediators places a duty of confidentiality on certified mediators and no one else involved in the mediation process. Attorneys and other participants do not have a duty of confidentiality, and mediators should be careful not to conflate the concepts of inadmissibility and confidentiality when explaining the mediation process to participants. |
| AO 21 (2012) | Mediator’s Fee, Rule 7 A court-appointed mediator may charge the hourly court-appointed rate for reviewing documents prior to the mediated settlement conference. |
| AO 20 (2011) | Mediator’s Notarization of Settlement Agreement, Standard 7 The North Carolina Secretary of State’s Office has advised the Dispute Resolution Commission there is nothing that prohibits the attorney mediator or non-attorney mediator, both of whom are notaries, from notarizing a settlement agreement. |
| AO 19 (2011) | Compensation of the Mediator, Rule 7 A mediator may charge an advanced deposit for services but is prohibited from delaying the mediation if the advanced deposit has not been made. The mediation shall be conducted by the mediator regardless of a party’s ability to pay the mediator’s fee. |
| AO 18 (2011) | Filing Report of Mediator, Rule 6 The mediator is required to file a report of mediator timely and completely at the conclusion of the mediated settlement conference. |
| AO 17 (2010) | Mediator Later Serving as Arbitrator, Standard 7 A mediator may serve as a mediator and later serve as an arbitrator for the same parties in the same dispute. |
| AO 16 (2010) | Mediator’s Duty Concerning Intentional and Unlawful Non-Disclosure by Participant, Standard 8 Standard 8 of the Standards of Professional Conduct for Mediators requires mediators to protect the integrity of the mediation process. When a party in an equitable distribution action intentionally refuses to disclose information in mediation when such disclosure is required by statute, a mediator must terminate the mediated settlement conference. |
| AO 15 (2008) | Mediator Accepting Role as Administrator of Estate, Standard 7 A mediator should remain focused exclusively on their role as mediator and may not solicit or accept an appointment as a fiduciary that flows from the mediation process. |
| AO 14 (2008) | A mediator may provide work at no cost, or reduced fees under the conditions listed within this Advisory Opinion. |
| AO 13 (2007) | Neutrality of the Mediator, Standard 2 The best practice for a mediator dealing with contradictory information without accusing a party of lying. |
| AO 12 (2007) | A mediator may not modify the Rules for Settlement Procedures in District Court Family Financial Cases or the Standards of Professional Conduct for Mediators in their Agreement to Mediate service contract. |
| AO 11 (2007) | Agreement Must Be Reduced to Writing and Signed at the End of the Mediation N.C.G.S. § 7A-38.1(l) If an agreement is reached, the mediator must assure that it is reduced to writing and signed. |
| AO 10 (2006) | Attendance, Rule 4(a)(1) Over the objection of attorney A, the mediator has the discretion to allow attorney B’s paralegal to attend the mediated settlement conference. |
| AO 09 (2006) | Mediator’s Duty in Response to Risk of Confidentiality Breach, Standard 3 Standard 3 of the Standards of Professional Conduct for Mediators places a duty of confidentiality on a mediator as to information communicated to the mediator during the mediation process. Implicit in this duty is an obligation to notify mediation participants, who may be at risk because of a breach in confidentiality, so the participants will have an opportunity to protect their interests. |
| AO 08 (2005) | Scheduling the Mediated Settlement Conference, Rule 6(b)(5) The mediator is responsible for scheduling the mediated settlement conference even when local practice dictates otherwise. |
| AO 07 (2004) | After a mediator learns that a bankruptcy petition has been filed, the mediator shall notify the parties that the mediation cannot proceed until the stay has been lifted or the mediator is informed that an exception applies, and the parties have been given permission to proceed from the bankruptcy court. |
| AO 06 (2004) | Mediator’s Future Representation of a Party, Standard 7 After conducting a mediation, the mediator/attorney shall not represent any party in future matters that arise from the same cause of action. |
| AO 05 (2003) | Discussions after Impasse has been Declared, Rule 6 and Standard 3 Under certain circumstances after impasse has been declared, a mediator may have a discussion with an attorney for a party about what was said at the mediated settlement conference. |
| AO 04 (2003) | A mediator is not required to retain their mediation files. |
| AO 03 (2001) | Confidentiality of Statements Made in Opening Session, Standard 3 A mediator may not agree to provide an affidavit or be deposed concerning statements made during the opening session of a mediated settlement conference, even if the parties and their attorneys agree. Absent a statutory duty, a mediator is bound by the confidentiality provisions of the Standard. |
| AO 02 (2000) | AO 02 has been archived September 20, 2024; Substantive content included in AO 24. |
| AO 01 (1999) | Conference, Rule 6 A mediator cannot declare an impasse prior to conducting a mediated settlement conference. |
Archived Advisory Opinions
Full text of Archived Advisory Opinions
Mediator Request for Advisory Opinion Form
| Archived Advisory Opinion Number | Summary of Archived Advisory Opinion |
| 43 (2022) | MSC Rule 4(f), FFS Rule 4(e), Clerk Rule 4(d), DCC Rule 4(e) and Farm Nuisance Rule 5(b)5, prohibit any recording of a mediated settlement conference, which includes metadata from a mediation held by remote technology. Any data, including metadata that can be created or stored by the remote technology provider shall not be accessed or retrieved. |
| 42(2021) | A party who will not be physically present at a mediated settlement conference is responsible for arranging electronic signing capacity and if that cannot be done, for providing written verification of someone with authority to sign on the party’s behalf. The mediator is not required to determine the legal adequacy of the written verification provided. However, if a party who will not be physically present at the time the final agreement is to be signed has not made arrangements for electronic signature or provided written verification that the party’s designee has authority to sign on the party’s behalf, the mediator shall encourage the party or party’s attorney to notify all other parties of the lack of ability to execute a final agreement prior to commencing the mediation. After full disclosure, the parties may commence the settlement conference. |
| 41(2021) | Mediated Settlement Conference Rule 4(b) requires the attorney or party to the action contact the lienholder to notify them of the meditated settlement conference. However, until the lienholder attends the mediation, they are considered a nonparticipant. The mediator holds no duty to the lienholder prior to the mediation and is precluded from discussing the mediation with a nonparticipant under Standard 3. Confidentiality. Once the lienholder is invited to participate in the mediation, and the lienholder attends the conference, they become a participant at the mediation. As a participant to the mediation, the mediator may disclose information regarding the mediation to the lienholder, so long as the information was not communicated in confidence to the mediator under Standard 3(b). |
| 40(2020) | A mediator may not act as a parenting coordinator for the parties after conducting a mediation involving the same parties out of the same cause of action. Under Standard 7(c), Conflicts of Interest, a mediator is prohibited from engaging in a professional relationship with one or more of the parties to a mediation, after a mediation has concluded, if the new professional relationship involves the same dispute, is an action closely related to the dispute, or is an outgrowth of the dispute. The relationship is considered professional when the person providing services obtains confidential or private information from the party requesting services. The DRC continues to uphold the premise that mediators should not be in a position where they could benefit or profit from knowledge they learned in mediation. |
| 39(2018) | The Dispute Resolution Commission's Program Rules and Standards of Conduct place an obligation on mediators to actively and effectively manage their cases. As part of this duty, the mediator is required to report on the outcome of each case assigned to him/her by timely filing a Report of Mediator. In addition, the mediator shall conduct their conferences prior to the deadline for completion set out in the court's order and shall not knowingly contract for mediation services that cannot be timely delivered. |
| 38(2018) | Pursuant to N.C.G.S. § 7A-38.4A, Settlement procedures in district court actions, evidence of statements made and conduct occurring in a mediated settlement conference shall not be admissible in the action or other civil actions on the same claim, subject to a few narrow exceptions. A claim for attorney fees does not fit within a named exception, or be required to disclose their notes from the mediation on a claim of attorney’s fees. |
| 37(2018) | Pursuant to MSC Rule 2(a), the plaintiff’s attorney, or any party may file the designation of mediator form with the court. A mediator, or someone acting on their behalf, may not complete, sign, or file Designation forms with the court. This rule protects the court and mediators from potential allegations made by a party that the party was not consulted prior to the designation of the mediator. Although this AO specifically addresses a question raised by superior court staff and the actions of a superior court mediator, it also applies to the Family Financial Settlement program and the Clerk Mediation Program. |
| 36(2018) | Under Standard 7(h), a mediator may sponsor a CME or CLE program or Speaker and have her contribution acknowledged on a sign or on registration and/or program materials. A mediator may also sponsor a dinner or open bar at a CME or CLE event and have their contribution acknowledged on a sign or on registration and/or program materials, so long as the sponsorship directly relates to an educational benefit that is available to the public. However, a dinner or open bar event with a limited or restricted guest list, or by personal invitation only, is akin to a gift and would violate the bright line gift rule. |
| 35(2018) | A mediator has an obligation to raise the issue of settlement authority in a situation where an attorney comes to mediation without his client and requests that the conference proceed. In the situation described, the defendant notified his attorney at the last minute that he would not attend the conference. The defendant’s attorney told the mediator and opposing counsel that, though his client was absent, he wanted to go ahead and discuss the case. The conference proceeded and an agreement was reached which defendant’s attorney signed on behalf of his client. Neither the opposing counsel nor the mediator asked the defendant’s attorney whether he was authorized by his client to sign the agreement. Later, the defendant rejected the agreement, maintaining that his attorney was not authorized to sign for him. Best practice in this situation would have been for the mediator to insist that the attorney get his client on the telephone or to have him ask the defendant to send an email, text, or other written communication authorizing the attorney to discuss and settle the matter on the defendant’s behalf. If an attorney refuses to disclose the fact that he lacks settlement authority to the other side, the mediator should encourage the attorney to disclose and, if he continues to refuse, may determine to recess or terminate the conference pursuant to Standard 8, Protecting the Integrity of the Mediation Process. |
| 34(2018) | A mediator may not conduct two mediated settlement conferences simultaneously. To do so violates Standard 7 and creates an inherent conflict of interest. In conducting both conferences simultaneously, the mediator appears to be promoting his own financial interests over the interests of the parties, particularly if the mediator is charging his full hourly rate and administrative fee for each. Conducting two conferences at the same time also raises concerns about mediators prolonging conferences unduly (Standard 7(g)) and confidentiality (Standard 3). |
| 33(2016) | Under Standard 7(h), a mediator may not distribute mouse pads with contact information thereon to existing or potential clients in expectation of referrals, as an advertisement of his/her services, or as a “thank you” for selecting him/her as a mediator, irrespective of the value of the mousepads. The exception to Standard 7(h) is very narrow, only permitting a mediator to give de minimus offerings such as snacks, sodas, cookies, or lunches during the mediation to further the process or to show respect for cultural norms. |
| 32(2016) | A pro se non-English speaking party to a mediation needs the services of a language interpreter as an accommodation and may bring a family member or friend to the mediation to act as her interpreter. The accommodation is necessary to ensure that the party can comprehend and effectively participate in the mediation as contemplated by Standard 4(c). The mediator should clarify that the interpreter will relate all that is said as completely as possible, and not just summarize. The mediator may recess the mediation if s/he is not satisfied that the interpreter can provide reasonable assurances of the party’s understanding of the process. To alert the court to the language access issue, it is recommended as a best practice that the mediator include a statement at the end of the Report of Mediator similar to the one set out in the advisory opinion. |
| 31(2015) | In a case where one party is represented by counsel and one is pro se, the mediator may not prepare an agreement for the parties to sign. In addition, when an attorney drafts a proposed settlement agreement for the pro se party to sign at the conference, the opinion sets out certain information that the mediator shall convey to the pro se party prior to his/her signing the agreement. Consistent with Standard 8, the opinion also requires the mediator to read any proposed agreement and raise questions with the party(ies) and or attorney if the agreement does not include the terms discussed in the presence of the mediator or are misstated, and facilitate their discussions and negotiations to reach a complete agreement. |
| 30(2014) | Mediator was subpoenaed to testify and did testify in an action to enforce a mediated settlement agreement reached at mediation. The parties did not object to the testimony and the court did not compel the testimony. The mediator did not alert the court to Standard 3 and his duty to preserve confidentiality. The Commission reaffirmed its opinion formerly set out in its Advisory Opinion 03(2001) and stressed that mediators in court-ordered mediations and certified mediators in all mediations, unless exempted by Standard 3, should not voluntarily testify as to statements made or conduct occurring at a mediation. Instead, a mediator should alert the court by motion or otherwise of his/her duty of confidentiality under Standard 3. It is irrelevant that the parties do not object to the testimony. The mediator in this case was sanctioned by the Commission. |
| 29(2014) | This opinion discusses the duty of the mediator to define and describe the separate and distinct concepts of confidentiality and inadmissibility at the beginning of the mediation. Mediator mediated a civil superior court case in which the plaintiff alleged sexual harassment by the defendant. Plaintiff was also the complaining witness in a criminal action against the defendant arising out of the same facts. G.S. 7A-38.1(l) provides that “evidence of statements made and conduct occurring in a mediated settlement conference…shall not be subject to discovery and shall be inadmissible in any proceeding in the action or other civil actions on the same claim…” (emphasis added). Participants in a mediated settlement conference in a civil case may be required to testify in a criminal matter. Although the mediator is under a duty to discuss confidentiality and inadmissibility, any discussion about how these concepts apply to the parties and their conversations in mediation is the responsibility of the attorneys for the parties. |
| 28(2013) | At the conclusion of a successful mediation, a divorcing couple, both of whom are pro se ask the mediator to prepare a binding agreement for their signatures, and further, to file a court action on their behalf to incorporate their agreement into a consent order. Standard 6 of the Standards of Professional Conduct for Mediators provides that a mediator “shall limit himself/herself solely to the role of mediator, and shall not give legal or other professional advice during the mediation.” The opinion holds that the mediator may not prepare an agreement or file an action with the court because both activities are the “practice of law” under N.C. Gen. Stat. 84-2.1, and to do either would be a violation of Standard 6. This opinion also calls attention to N.C. State Bar 2012 Formal Ethics Opinion 2 which held that the attorney mediator could not prepare a binding business contract for two pro se parties at the conclusion of a successful mediation because the mediator had a “non-consent able” conflict of interest, and would improperly practice law if he drafted a contract requested by the parties. |
| 27(2013) | Pro se wife in an equitable distribution case informed her court- appointed mediator during the scheduling process that she was unable to pay his fees. Mediator insisted she must pay and when she refused, contacted her husband and sought payment of Wife’s share of the mediator fee from Husband; told the judge that he believed she could pay and that the parties were being unreasonable; failed to schedule a mediation; and upon Wife’s allegation of the mediator’s bias against her, withdrew from the case under Standard 2(c)(1). Once a mediator learns of a party’s claim of inability to pay, the mediator should advise them of their right to file Form AOC-CV-828, Petition and Order for Relief From Obligation To Pay All Or Part of Mediator’s Fee in Family Financial Cases. Thereafter s/he should have no more communication about inability to pay and should schedule the mediation. This opinion holds that mediator’s actions were inconsistent with FFS Rule 7(e) and FFS Rule 6(a)(2) in that he failed to schedule the mediation, and with Standard 3, Confidentiality, (conversations with husband and judge), Standard 2, Impartiality, (mediator took a position in favor of the husband), and Standard 7, Conflicts of Interest, (mediator mixed his own financial business interests with the business of the parties) and became overly focused on his fee. |
| 26(2013) | Mediator learns that an appeal has been filed in a case that s/he has been assigned to mediate. The party filing the motion insists that the appeal divests the trial court of jurisdiction and stays the mediation. The opposing party wishes to proceed with the mediation. The Commission advises the mediator that it is ultimately the responsibility of the parties to seek clarification from the trial court in this instance. However, if they take no action, the mediator should seek guidance from trial court staff as to whether the mediation is stayed upon appeal of the case or it may proceed. |
| 25(2013) | At a court-ordered conference, a party objects to a corporation attending without legal counsel. The Commission advises mediators to avoid taking positions in disputes over attendance. Absent an order of the court dispensing with mediation, a mediator should conduct the conference and advise the parties to direct any questions about attendance to the court. In simply conducting the conference, an attorney mediator is not facilitating the unauthorized practice of law. |
| 24(2013) | At a court-ordered conference, a party objected to the attendance of an out-of-state attorney when the attorney had not been admitted pro hac vice. The Commission advises mediators to avoid taking positions in disputes over attendance. Absent an order of the court dispensing with mediation, a mediator should conduct the conference and advise the parties to direct any questions about attendance to the court. In simply conducting the conference, an attorney mediator is not facilitating the unauthorized practice of law. |
| 23(2012) | Program enabling legislation provides for mediator testimony at State Bar disciplinary hearings regarding an attorney’s conduct in mediation. However, where no subpoena is involved, the Commission does not read the legislation broadly to permit mediators to answer a State Bar investigator’s questions in preliminary stages of an investigation. A note following the Opinion addresses situations where an attorney-mediator is him or herself the subject of the investigation. |
| 22(2012) | Standard 3 of the Standards of Professional Conduct for Mediators places a duty of confidentiality on mediators. Unlike their mediator, the parties and their counsel are not bound by Standard 3 and are free to talk to the public or press about statements or conduct occurring in the mediation. If the parties want to negotiate their own confidentiality agreement, the mediator should assist them. |
| 21(2012) | When a mediator is asked by one party to a mediation to review documents in advance of the conference, a mediator may charge for the time spent in that review. However, to maintain neutrality, the mediator should obtain permission of all parties before undertaking the review, even if one party offers to pay the entire fee associated with the review. Mediators are urged not to charge for routine document review, such as short case summaries or briefs. |
| 20(2011) | An attorney or non-attorney mediator who is also a notary public may notarize an agreement resulting from a mediation that s/he conducted. |
| 19(2011) | Party selected mediators may charge an advance deposit for their services mediating, but may not postpone or refuse to conduct a mediation when a party is unable to pay the deposit. A party should never be denied the opportunity to mediate because s/he cannot pay some or all of the mediator’s fee. |
| 18(2011) | Mediator was disciplined privately by the Commission for neglecting his case management responsibilities, including failing to complete his Reports of Mediator fully and to file them timely. Opinion stresses the need for mediators to take their case management responsibilities seriously and to fulfill all their reporting obligations. |
| 17(2010) | A mediator is not precluded from serving as an arbitrator in a case that s/he has previously mediated. This Opinion distinguishes the situation where a mediator transitions to the role of arbitrator from the situation where a mediator becomes a fiduciary. Opinion 15(2008) addresses the latter situation and advises that mediators should not solicit or accept an appointment as a fiduciary when that appointment flows from the mediation process. Opinion 17(2010) provides guidance on making the transition from mediator to arbitrator. |
| 16(2010) | During a caucus session held during the mediation of a family financial dispute, the wife and her attorney told the mediator confidentially that they had intentionally failed to disclose the existence of valuable marital asset on their inventory affidavit. The mediator asks whether the mediation can continue in the face of this nondisclosure. The Opinion provides that, in these circumstances, the best practice would be for the mediator to engage the offending party and encourage her and her attorney to disclose the asset. If they refuse, then the mediator must terminate the session and withdraw from the mediation without violating the requirements of confidentiality. |
| 15(2008) | During a Clerk referred mediation of a dispute over who should serve as an estate’s administrator/fiduciary, the mediator agreed to allow the parties to appoint him as the administrator/fiduciary. The Commission believes that soliciting or even accepting such an appointment at the insistence of the parties, can create the impression that the mediator manipulated the mediation process with the ultimate goal of furthering his or her own interests. A mediator should remain focused exclusively on his or her role as mediator and should not solicit or accept such an appointment. |
| 14(2008) | This Advisory Opinion addresses a proposal to form a panel of volunteer mediators willing to serve pro bono in mediations involving clients of legal services organizations. The Opinion discusses fees, including disclosure of waiver and negotiation of the shifting of payment to another party, both in the context of service on the proposed panel and in the context of any other mediation where a mediator has agreed to serve pro bono or for a reduced fee relative to at least one party. |
| 13(2007) | A mediator should not compromise his/her neutrality by overtly accusing a party of being untruthful during mediation or by using language tantamount to such an accusation. A mediator should not confront a party in a hostile or abusive manner. Such actions compromise the mediator’s neutrality. A mediator should not use any profane language during mediation even if the parties or their lawyers are using such language. |
| 12(2007) | A court-appointed mediator distributed a copy of an agreement to mediate and asked the parties to sign prior to their mediated settlement conference. The agreement contained terms that modified and even ran counter to program rules and the Standards of Professional Conduct for Mediators. The Commission determined that a court appointed mediator may not, through the use of an agreement to mediate, modify program rules or the Standards. |
| 11(2007) | Mediator failed to reduce the terms of an agreement reached in mediation to writing in accordance with MSC Rule 4(a)(2) and 4(c). Moreover, mediator should not have reported to the Senior Resident Superior Court Judge in his Report of Mediator that the case had been settled when there was no writing. Mediator should have accompanied the parties on their site visit to ensure that all the details were ironed out and then assisted them in reducing their agreement to writing. |
| 10(2006) | MSC Rule 4(a)(1) addresses who shall attend a conference. Pursuant to Rule 6(a)(1), the mediator has discretion to determine who else may be present. If there is a dispute between the parties regarding whether an individual may attend, it is best practice for the mediator to try and mediate the matter first. If the mediator cannot help the parties reach an agreement on the issue, then the mediator should make a determination as whether the individual in question may attend. |
| 09(2006) | The mediator has a duty to warn parties when confidentiality is breached and parties are at financial or other risk because of the breach. The situation which gave rise to this opinion involved financial information that was removed from a mediator’s laptop during service and that could not be relocated and restored. |
| 08(2005) | It is the duty of the mediator, and not that of the parties, to schedule the mediation within the timeframe established by the court for completion. |
| 07(2004) | Upon learning that a bankruptcy petition has been filed in a case, a mediator shall report to the court that the bankruptcy has been filed and shall request that the judge who referred the matter to mediation advise the mediator as to whether s/he should hold the conference. |
| 06(2004) | A mediator who conducts a mediation for a couple that is separating may not thereafter represent either the husband or wife in divorce proceedings. |
| 05(2003) | As long as he or she does not reveal any confidential information, a mediator may, following an impasse, continue to assist a party or parties who contact the mediator in an effort to revive discussions or to clarify something that was said at mediation. If the mediator believes that the party who contacted him/her has a nefarious motive, the mediator is not obligated to respond or to involve him or herself further in the matter. |
| 04(2003) | It is discretionary with the individual mediators as to how long they retain mediation files, but mediators should consider confidentiality concerns in making decisions regarding file retention. |
| 03(2001) | Confidentiality is integral to the success of the mediation process. Mediators should be vigilant in their efforts to preserve confidentiality and should not give affidavits or testify in court as to statements and conduct occurring in connection with a mediation unless the communication is permitted by an exception set forth in a statute or Standard. |
| 02(2000) | It is preferable for parties to physically attend a mediation conference rather than participating by telephone. A mediator should not waive or modify the attendance requirement absent some compelling reason to do so. |
| 01(1999) | Once a case has been ordered to mediation, a mediator has a duty to assemble the parties and hold the conference prior to the deadline for completion. A mediator may not simply report an impasse based on a representation by the parties that the case cannot be settled. |