I recently sat on a panel of mediators discussing ethics and
mediations. As mediators, we all know that when a party says
"don't tell the other side" of such and such, we
can't and we don't. But are there situations where the
non-disclosure is so fundamental that the mediator should withdraw
from the mediation?
Take a simple example. Counsel acts for the plaintiff on a
wrongful dismissal. By the time of the mediation, his client has
not found employment. In caucus, she says: "But I do have an
offer – my lawyer told me not to accept it until after the
mediation." Counsel pipes up: "You can't tell them
The mediators on the panel discussed variations of this theme.
To my surprise, some of my colleagues were strongly of the view
that the failure to disclose amounted, effectively, to a
misrepresentation by omission which, if not corrected, would force
them to withdraw from the mediation. Since most mediators are
lawyers, the argument went, we are officers of the court and
obliged not to assist one party to enter into a fraudulent
I completely agree with that proposition, although a more
nuanced analysis raises serious questions about the role of the
mediator and the danger of taking what goes on in caucus at face
value. Terminating a mediation without explanation can be highly
prejudicial and cannot be done lightly. Back to our example. Would
the settlement really be tainted if the defendant employer paid 8
months' notice, when in fact the claim might actually be worth
only 4 months' notice? Yes, there may be an
overpayment, but is the plaintiff and her counsel behaving
unethically in not disclosing the job offer?
In an adversarial judicial process, it is up to the parties to
dig up the details of the other side's case, subject to the
discovery requirements under the rules pertaining to documentary
disclosure, the obligation to correct answers, not misrepresent
facts, and so forth. If affidavits of documents have been
exchanged, and the job offer is in writing, the plaintiff has an
obligation to produce it. If asked on discovery, "Will you
advise us if you receive a job offer", she must comply with
that undertaking. A settlement entered into where a party is in
breach of disclosure obligations may well be voidable, and a
mediator should properly refuse to facilitate such a
But what if the offer was oral? What if the employer never asked
about offers at discovery? What if the case hasn't even gone to
discovery? What if there is nothing in the mediation brief that
could be construed as a misrepresentation? Is the mediator under an
ethical obligation to ask these questions? Is it my job to ferret
out whether counsel is engaged in sharp practice, or worse?
Isn't it the job of defence counsel to make sure that the
plaintiff is boxed in on the issue of mitigation by asking the
right questions, through discovery or otherwise, prior to the
There may be some cases where it is obvious that a party has a
duty to disclose. There may be others where the mediator has no
reason to believe a duty exists. But what about the cases in
between, the ones that make the hair on one's neck stand up a
bit? At a minimum, the mediator should take a "time out"
and carefully review the brief, to make sure that the plaintiff has
not used the mediation process itself to actively misrepresent such
a fundamental fact. I would also remind counsel of the continuing
obligation to make disclosure, and ask if he or she is comfortable
that the plaintiff has complied. If the answer is yes, and I have
no reason to doubt counsel's integrity, I would not terminate
At the same time, I would not in any way attempt to persuade the
defendant to settle, or try to sell the plaintiff's number. At
this point, I would do what I never do in other cases – act
as a messenger only. You might then ask "why not just
terminate – they don't need a mediator anymore", and
my answer would be this: mediation is the parties' process, and
as long as they are talking I will be there – unless one of
them has crossed the line.
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