For a more extensive discussion of mediation, see, e.g.: Fisher, R. and Ury, W., Getting to Yes: Negotiating Agreement without Giving In (New York: Penguin Books, 1991); C. W. Moore, The Mediation Process: Practical Strategies for Resolving Conflict, 4th ed. (San Francisco: Jossey-Bass, 2014); K.I Kovach, Mediation in a Nutshell, 3d ed. (St. Paul: LEG, Inc. d/b/a/ West Academic, 2014).Google Scholar

As a state-approved mediator, Schmidt reviewed his state’s rules governing mediation and believed that the ethics committee was probably incorrect in declining to opine on his first, federal court, version. Per those rules, the state’s ADR board governs any mediation conducted by a state-approved mediator, for any civil action in a court that has continuing jurisdiction over the matter. Although exemptions are identified, the rule does not exclude actions in a federal court. On further study, Schmidt also could not locate any provision that would restrict the committee from opining on hypothetical litigation. Hence the committee’s response to the second, state-based, version of the scenario was also arguably incorrect.Google Scholar

Shonk, K., Types of Mediation: Choose the Type Best Suited to Your Conflict, Daily Blog, Harvard Program on Negotiation, February 27, 2024, available at <https://www.pon.harvard.edu/daily/mediation/types-mediation-choose-type-best-suited-conflict/#:~:text=In%20facilitative%20mediation%20or%20traditional,exploring%20each%20other’s%20deeper%20interests> (last visited March 28, 2024).+(last+visited+March+28,+2024).>Google Scholar

See Shonk, supra note 3.Google Scholar

Wood, W., “Coercion, Manipulation, Exploitation” (Chapter 1) in Coons, C. and Weber, M. eds., Manipulation: Theory and Practice (New York: Oxford University Press, 2014): at 21.Google Scholar

Id., at 31-32, 35 (citing: Baron, M., “Manipulativeness,” Proceedings and Addresses of the American Philosophical Association 77, no. 2. (2003)). Deception includes not just outright lying, but also misrepresentation such as encouraging false beliefs. Id., at 31-32. Pressuring “can involve browbeating, wearing down the other’s resistance, and making someone agree to something just to avoid further discomfort or embarrassment.” Id., at 32. Both are designed to induce people to make decisions they would not otherwise have made, if left unencumbered. Id., at 31-32, 35.Google Scholar

Much of the responsibility here lay on his attorney, but as a mediator himself, Schmidt believed the mediator also had a responsibility. In his own experience, when attorneys would say “give us a date,” his standard response was always “let’s find several dates that work for us; then run them by your clients and we’ll get one that works for everyone.” That said, Schmidt could have responded that the date did not work for him. But that would make saying “No” his very first act in mediation — hardly conducive to optimism for achieving agreement.Google Scholar

In some cases, manipulation may especially fall on the Plaintiff. In personal injury suits, for instance, the Plaintiff is typically an “average Joe” from a car crash or slip-and-fall, unschooled in law and mostly or entirely reliant on the attorney for help and guidance. The opposing party is typically an insurer with a wealth of savvy and power. Although the Plaintiff always has the right to say yes or no to a proposal, manipulation involving pressure and circumscribed information can be used to short-circuit self-determination.Google Scholar

From counsel’s email to Schmidt: “The defense attorney and carrier, upon reflection, have agreed to pay you [$X] in new money (total of $Z) which was what we told them would settle the case last week … “Google Scholar

See American Bar Association (ABA), “Model Rules of Professional Conduct,” available at <https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/model_rules_of_professional_conduct_table_of_contents/> (last visited March 28, 2024).+(last+visited+March+28,+2024).>Google Scholar

From the defendant’s counsel: “[w]e are settled for that amount.” Then per Schmidt’s attorney: “The defense attorney and carrier, upon reflection, have agreed to pay you [$X] in new money (total of $Z) which was what we told them would settle the case last week when they instead chose to offer you [$Y] in new money.”Google Scholar

See American Bar Association (ABA), “Model Rules of Professional Conduct,” available at <https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/model_rules_of_professional_conduct_table_of_contents/> (last visited March 28, 2024). a. Per Rule 1.4’s Comment [2]: “… a lawyer who receives from opposing counsel an offer of settlement in a civil controversy or a proffered plea bargain in a criminal case must promptly inform the client of its substance …” (available at <https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_4_communications/comment_on_rule_1_4/> (last visited March 28, 2024)). b. Similarly, per ABA Rule 1.0(e): “’Informed consent’ denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct” (available at https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_0_terminology/)> (last visited March 28, 2024). Here, too, “adequate information” about “reasonably available alternatives” during negotiation would suggest a conversation about re-offering $X versus continuing with discovery.+(last+visited+March+28,+2024).+a.+Per+Rule+1.4’s+Comment+[2]:+“…+a+lawyer+who+receives+from+opposing+counsel+an+offer+of+settlement+in+a+civil+controversy+or+a+proffered+plea+bargain+in+a+criminal+case+must+promptly+inform+the+client+of+its+substance+…”+(available+at++(last+visited+March+28,+2024)).+b.+Similarly,+per+ABA+Rule+1.0(e):+“’Informed+consent’+denotes+the+agreement+by+a+person+to+a+proposed+course+of+conduct+after+the+lawyer+has+communicated+adequate+information+and+explanation+about+the+material+risks+of+and+reasonably+available+alternatives+to+the+proposed+course+of+conduct”+(available+at+https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_0_terminology/)>+(last+visited+March+28,+2024).+Here,+too,+“adequate+information”+about+“reasonably+available+alternatives”+during+negotiation+would+suggest+a+conversation+about+re-offering+$X+versus+continuing+with+discovery.>Google Scholar

Another likely ethical breach deserves mention. Per ABA Rule 3.3(a)(1): “A lawyer shall not knowingly … make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.” See ABA Rules, supra note 12, available at <https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_3_3_candor_toward_the_tribunal/> (last visited March 28, 2024). This one rests on both sides’ attorneys. Early on, both agreed that they would not yet conduct depositions, but rather would see whether they could resolve the case in mediation. However, in her court-filed motion to extend the court’s ADR deadline Schmidt’s attorney stated: “The parties attempted to schedule this mediation within the current deadline and have also worked to expedite party depositions prior to the mediation. The parties are working to move this matter forward in discovery.” This was false, and presumably it was material to the court’s decision whether to extend the deadline, else Schmidt would not have mentioned it in his motion.+(last+visited+March+28,+2024).+This+one+rests+on+both+sides’+attorneys.+Early+on,+both+agreed+that+they+would+not+yet+conduct+depositions,+but+rather+would+see+whether+they+could+resolve+the+case+in+mediation.+However,+in+her+court-filed+motion+to+extend+the+court’s+ADR+deadline+Schmidt’s+attorney+stated:+“The+parties+attempted+to+schedule+this+mediation+within+the+current+deadline+and+have+also+worked+to+expedite+party+depositions+prior+to+the+mediation.+The+parties+are+working+to+move+this+matter+forward+in+discovery.”+This+was+false,+and+presumably+it+was+material+to+the+court’s+decision+whether+to+extend+the+deadline,+else+Schmidt+would+not+have+mentioned+it+in+his+motion.>Google Scholar