by Suzanne Mann Duvall
Mediation is in session. The mediator in is a caucus room with one side and has just presented a mediator’s proposal. Through the thin wall, the other side hears the mediator exclaim, “You hit me!”
Both sides emerge into the adjoining hallway where it is revealed that the plaintiff hit the mediator and the police have been called. The mediator announces, “This mediation is over,” and also states that he will file a criminal complaint against the plaintiff, in addition to possible a civil lawsuit.
What if the walls had been thicker and the other side had not heard the mediator say, “You hit me”? Should the mediator have disclosed that the mediation was being terminated because he had been hit by the plaintiff? Should the mediator file criminal charges and/or a civil damage lawsuit against the plaintiff? What confidentiality rules are being violated, if any? If so, by whom are the confidentiality rules being violated? Once the plaintiff assaulted the mediator, are there any circumstances under which the mediation could proceed? Would it matter if the plaintiff apologized to the mediator?
Trey Bergman, Houston
Here, confidentiality trumps trauma.
Section 154.053(c) Texas Civil Practice and Remedies Code states that “[A]ll matters, including the conduct and demeanor of the parties and their counsel during the (mediation), are confidential and may never be disclosed to anyone, including the appointing court.”
On June 13, 2005 the Texas Supreme Court adopted “Ethical Guidelines for Mediators” (Ethical Guidelines), which was amended on April 11, 2011.
Guideline 2 of the Ethical Guidelines entitled “Mediator Conduct” states that “A mediator should protect the integrity and confidentiality of the mediation process.”
Comment 2(b) of the Ethical Guidelines states “The interests of the parties should always be placed above the personal interests of the mediator.”
Comment 4(a) of the Ethical Guidelines states “A mediator should withdraw from a mediation if it is inappropriate to serve.”
Comment 9 of the Ethical Guidelines states “If a mediator or the parties find that the mediator’s impartiality has been compromised, the mediator should offer to withdraw from the mediation process.”
Guideline 13 of the Ethical Guidelines states “A mediator should postpone, recess or terminate the mediation process if it is apparent to the mediator that … one or more of the parties is unwilling or unable to participate meaningfully in the mediation process.”
Application of Law to the Facts
The fact that a mediator was assaulted by a party in a private caucus is between the mediator and the party and cannot be disclosed to anyone outside of the private caucus.
The mediator can recess or terminate the mediation any time they choose. However, in doing so the mediator must maintain confidentiality and not do anything to alter the relationship between the parties.
A safe and simple way to recess or terminate this mediation is for the mediator to announce that they must withdraw due to a conflict of interest that arose for the first time during the mediation session. If asked by anyone what that conflict consists of, the mediator can only state that the conflict may not be exposed due to confidentiality and ethical requirements.
The mediator cannot be wrong if the mediator never violates a confidence or the Ethical Guidelines.
The phrase “all matters” in the statute is clear and all-encompassing.
The phrase “including the conduct and demeanor of the parties” in the statute is clear and all-encompassing.
Ethical Guideline Comment 2(b), which states “The interests of the parties should always be placed above the personal interests of the mediator,” is clear and all-encompassing.
Under a strict interpretation of the statute and the Ethical Guidelines the mediator may not disclose that they were assaulted by a party in a private caucus, either to the trial court, the District Attorney, or in a separate civil damage lawsuit against the person who assaulted the mediator.
Exceptions Contained in the Confidentiality Requirements and Ethical Guidelines
Sections 154.05(d) and 154.073(e)(f) of Texas Civil Practice and Remedies Code and Comment 8(d) of the Texas Supreme Court Ethical Guidelines for Mediators acknowledges that applicable law may require a mediator to disclose information revealed in the mediation process. If confidential information is to be disclosed the mediator should advise the parties that disclosure is required and will be made.
Subchapter C, Chapter 48, Texas Human Resources Code allows confidential disclosure of the willful infliction of injury to a person 65 years of age or older, which disclosure may be required under Section 48.052 of the Texas Resources Code.
John Dowdy, Jr., Arlington
Presupposing the other side is unaware of what took place in the caucus room, I think the only thing the mediator can do is terminate the mediation without disclosing why. The assault itself compromises the mediator’s neutrality. In fact, the mediator’s neutrality was already compromised due to the plaintiff’s motivation in committing the assault.
There is nothing novel about a mediator terminating a mediation without disclosing why.
I see nothing wrong with the mediator, who is now a crime victim, filing criminal charges against the plaintiff. If the mediator is injured enough to justify a tort action against the plaintiff, I likewise see nothing wrong with the filing of a civil suit. I don’t think the confidentiality rules would prohibit either of these actions. In fact, there may even be policy reasons precluding such a prohibition. If the mediator is the victim of a crime or tort (or both), she should be free to take whatever action any other victim would take. The plaintiff should not be allowed to claim protection from either criminal or civil prosecution based on confidentiality rules.
The evidence presented by the mediator/victim in the criminal case, as well as in the tort case, would be based on the fact of the assault and battery without getting into details of the mediation subject matter.
The last question has to do with whether and to what extent an apology from the plaintiff would change things. If there is any doubt, even post-apology, concerning whether the mediator’s neutrality has been compromised, the mediation should still be terminated.
Frank Elliott, Fort Worth
Assuming that the walls were as thin as suggested and everyone heard the ruckus as it happened, it is clear that the mediator had to make a very tough decision. The plaintiff had the right at any time to end the mediation by requesting it, rather than by assaulting the mediator. The mediator has the right to declare an impasse or to recuse himself because of a loss of neutrality.
Even though the plaintiff apologized, it is difficult to imagine this mediator remaining impartial as contemplated by Ethical Guideline 9. If the mediator had been seriously injured, which is not suggested in the facts, the mediation could not have continued. Perhaps safety is another issue, because a volatile plaintiff might do further damage. All of these factors have to be weighed by the mediator, the manager of the process, in order to make the wisest choice.
Ethical Guideline 13, Termination of Mediation Session, sets the standard: “A mediator should postpone, recess, or terminate the mediation process if it is apparent to the mediator that … one or more of the parties is unwilling or unable to participate meaningfully in the mediation process.” A plaintiff so out of control that assault is the chosen behavior appears unable to participate meaningfully in a peaceful, reasoned, facilitated negotiation.
The more intriguing question is whether the mediator has the duty to maintain confidentiality if the other party did not hear what transpired. Comment (b) of Ethical Guideline 2, Mediator Conduct, stipulates that the interests of the parties should always be placed above the personal interests of the mediator. How can calling the police and threatening to file a civil law suit for damages against the plaintiff meet this standard?
Additionally, under Rule 8, Confidentiality, the mediator should not reveal information communicated during the mediation; this would include the non-verbal communication of hitting a mediator. Perhaps the best course for a mediator in this unfortunate situation is to simply declare an impasse without any explanation or intervention by the authorities, thereby preserving confidentiality and ensuring safety for everyone.
Could this be a case in which there is a wrong (i.e., an assault on a mediator) without a remedy? The facts seem to indicate as much; particularly when read from the vantage point of Ethical Guideline 2, “Mediator Conduct,” which states in pertinent part that, “The duty to protect the integrity and confidentiality of the mediation process commences with the first communication to the mediator, is continuous in nature, and does not terminate at the conclusion of the mediation.” (emphasis added)
Furthermore, to add insult to injury to our hapless mediator, comment (a) states that the mediator should not use information obtained during the mediation for person gain or advantage (such as filing a lawsuit?). And, comment (b) states that, “the interests of the parties should always be placed above the personal interests of the mediator.”
While all of our expert puzzler solvers firmly suggest that the mediator should terminate the mediation without any explanation of the reason, only John Dowdy sees nothing wrong with the mediator filing a civil action and/or criminal charges. Trey Bergman sets out the exception for the duty to report elder abuse (if the mediator is over 65 years old), and Frank Elliott sees the best course as to simply declare an impasse without any further explanation or intervention by the authorities, thereby preserving confidentiality and safety for everyone. Spoken like a true third-party neutral.
Suzanne M. Duvall is an attorney-mediator in Dallas with over 800 hours of training in mediation, arbitration, and negotiation. She has mediated over 2,500 cases and serves as a faculty member, lecturer, and trainer for numerous dispute resolution and educational organizations in Texas and nationwide. A former Chair of the ADR Section of the State Bar of Texas, Suzanne has received numerous awards for her mediation skills and service. She has also been selected “Super Lawyer” 2003–2015 by Thomson Reuters and the publishers of Texas Monthly, and been named to Texas Best Lawyers 2009–2016 and Best Lawyers in America 2014–2016. She is a TMCA Distinguished Mediator, the highest designation given by the TMCA. She can be reached at firstname.lastname@example.org.