October 1, 2007 – Ethics for Mediation Professionals: What Are the Rules of the New Road?
by Hanan M. Isaacs, M.A., J.D.
Mediation, whether court-connected, court-referred, or purely private, involves facilitated negotiations by a third party neutral. The neutral’s goal is to assist disputing parties in reaching voluntary, fully informed, and mutually accepted results. Mediation attendance may be voluntary or court-mandated. However, the outcome is binding only if the parties reach agreement and incorporate their settlement terms into contracts or court documents. What are the ethical standards and limits of the neutral’s role? Where are they found?
The two best starting places for New Jersey mediators seeking ethical guidance are the New Jersey Supreme Court’s Standards of Conduct for Mediators, published in January of 2000, and Rule 1:40-4(b) through (g), Rules Governing the Courts of the State of New Jersey. These standards and rules govern court-connected Complementary Dispute Resolution (CDR) programs and cover quality of process, mediator impartiality, confidentiality of mediation communications, qualification and training of neutrals, and termination of the mediation process.
Quality of Mediation Process
Standard I emphasizes the consensual nature of mediation, that mediation is a facilitative (rather than a directive or outcome-driven) process, and that the mediator must honor the parties’ need for self-determination, full information, and informed consent.
Standard II requires the mediator to conduct mediation sessions impartially and to disclose to all parties “any circumstances bearing on possible bias, prejudice, or lack of impartiality.”
Confidentiality and Its Limits
Standard V and Rule 1:40-4(b) govern confidentiality of mediation communications. Often, an Order of Referral signed by a Judge of Superior Court covers the issue. When it does not, then court-referred mediators should repeat or incorporate the standard and rule language by reference into a Retainer Agreement, signed by the mediator and the parties. Unless the parties negotiate for a different set of rules relating to confidentiality (which only happens rarely), the mediator should make it clear that under prevailing rules, the parties’ negotiations with one another, with two important exceptions, are inadmissible in any future court proceedings.
The first exception involves a party’s communication of proposed criminal or illegal conduct “likely to result in death or serious bodily harm,” if the mediator reasonably believes that reporting to appropriate authorities will prevent a party’s illegal behavior.
The second limit on confidentiality is that a party is permitted to establish proof of another party’s mediation communication “by independent evidence.” While the rule is silent as to whether the independent evidence must have been known and available before a party’s in-session disclosure, it appears that a party’s mediation disclosure could lead to the other party’s post-mediation search for evidence to prove what would otherwise be inadmissible as a confidential communication.
Consistent with Standard V, it is essential for the neutral to advise the parties of “the limits and bounds of confidentiality and non-disclosure” before mediation begins. Such early disclosure encourages the parties to communicate openly, but not so much as to damage their case if mediation does not resolve the dispute, and discourages threatening words or conduct.
Finally, and importantly, Rule 1:40-4(c) and Standard III expressly provide that the mediator may not be drawn into an adversarial proceeding as a witness and may not represent or provide professional services to any party to the mediation in the same or any related matter. However, the mediator or a professional member of the mediator’s office may provide professional services in an unrelated matter, either with the consent of all parties or, even without consent, six months after mediation has concluded. In child custody and parenting time matters, Rule 1:40-5 also prohibits a mediator from later acting as an evaluator for any court-ordered report or from making any recommendations to the court regarding custody or parenting time.
Mediator Qualifications and Training
Mediators from various professional disciplines are welcome to serve in court-connected programs. Rule 1:40-12 provides that mediators shall be trained and qualified for service in the areas of custody and parenting time, civil, general equity, and probate disputes, Special Civil Part matters, and/or municipal court matters. Training requirements, training hours, course content, and co-mediation requirements for each of those areas are as stated in Rule 1:40-12(b), including continuing education of 4 hours per year. Mediators failing to meet these basic and ongoing requirements will not be permitted to serve in court-connected mediation programs. Standard IV requires mediators to refrain from mediating matters unless the mediator has “the necessary and required qualifications to satisfy the reasonable expectations of the parties,” and requires mediators to make information available to the parties regarding their relevant training, education, and experience.
In the private sector, there is no State of New Jersey licensure or other required credential limiting one’s service as a mediator, and consumers must ascertain for themselves the qualifications, training, and experience of any proposed neutral.
The New Jersey Association of Professional Mediators (“NJAPM”) is the only group in the state offering accreditation to qualified mediators in the areas of family/divorce mediation and commercial/business mediation. Its published accreditation and continuing education standards are available online at www.njapm.org.
Termination of Mediation for Cause
Termination of process is an important tool for the mediator to understand and properly exercise. It plays a key role in shaping the parties’ understanding of mediation and serves as an appropriate check on a party’s abuse of the process, another party, or (as sometimes happens) the mediator.
Rule 1:40-4(f) states the following seven grounds for process termination, all of which are valid for court-connected or private settings:
(1) An imbalance of power between the parties “that the mediator cannot overcome;”
(2) A party’s perception that the mediator is partial to the other side;
(3) A party’s abusive behavior towards the other party or the mediator “that cannot be controlled;”
(4) A party’s continuous resistance to the process or the mediator;
(5) The parties’ poor communication “seriously impedes effective discussion;”
(6) The mediator believes that a party is under the influence of drugs or alcohol; or
(7) The mediator believes that continuing the process “is inappropriate or dangerous.”
In addition, Standard VI requires the mediator to conduct the mediation diligently, and to monitor the continuing suitability of the case for mediation.
Orders of referral and mediation retainer agreements should incorporate the rules and standards by reference or language. Once again, early disclosure will shape the process positively and discourage party misconduct. If the parties or one of them persist(s) in misconduct, then the mediator should terminate the process and refer the parties back to court and/or counsel.
Unless the parties consent or the rules and standards otherwise provide, neither the mediator, the parties, nor their legal counsel should advise the Court why a mediation has been terminated.
Mediation Practice Considerations
Various organizations, such as the New Jersey Association of Professional Mediators, the American Bar Association, the Association for Conflict Resolution, and the American Arbitration Association, have promulgated Rules of Professional Conduct for neutrals. Such conduct codes contain important principles for use by court-connected, court-referred, and purely private mediators. Mediators should become familiar with relevant codes of conduct and fashion a self-imposed set of ethical principles.
Moreover, mediators who also possess licenses to practice in the legal, mental health, accounting, or other regulated fields will be held to their licensed professional standards when practicing as a neutral. A mediator does not cease to represent his or her profession when acting as a neutral. Presumably, the neutral was selected for his or her reputation, skill, and experience in a primary profession. If the mediator’s behavior would have been actionable if performed by him or her in the course of the traditional licensed practice, then such misconduct may result in discipline by the licensing authority.
For example, Joint Opinion 676/18 of the Supreme Court Advisory Committee on Professional Ethics and Committee on Attorney Advertising, published in the spring of 1994, expressly states that a lawyer who serves as a mediator or arbitrator does so “as part and parcel of the practice of law . . . .” The Joint Opinion therefore imposes upon lawyers who mediate the duty “not to serve as mediator . . . in any case in which they have a conflict of interest,” and cross-references the attorneys’ Rules of Professional Conduct on confidentiality issues. Other professional boards will likely take the same approach vis-a-vis their licensees who also mediate.
Finally, mediators must be aware of limitations of mediation practice, in both process and substance. That is, mediators must know their limits in terms of the complexity of matters to be mediated, but also must stay clear of advising parties substantively in fields in which they lack familiarity or licensure.
For example, a non-lawyer mediator who offers legal or tax advice risks engaging in unauthorized legal practice, and also may invite a negligence claim if an unrepresented party follows such advice to his or her detriment. Similarly, a certified public accountant who serves as a mediator should not dispense mental health advice, or risks client complaints to the Board of Psychological Examiners, a lawsuit, or both.
As stated by the Supreme Court Committees on Professional Ethics and Attorney Advertising in Joint Opinion 676/18,
Alternative Dispute Resolution and Complementary Dispute Resolution have … swept the country. Given the congestion and resultant backlogs of the courts, and the expense of the more traditional adversarial process, state and federal courts have embraced ADR and CDR as providing faster and less expensive resolution of disputes.
The mediation revolution has finally arrived and in a big way. We now have the opportunity and responsibility to make these changes strong, vital, and long lasting. If professional mediators want to see mediation achieve co-equal status with the more traditional adversarial process, then we owe it to our clients and ourselves to adhere to the highest ethical standards. This article has shown that specific ethics guidelines already have been drawn for mediation neutrals. It now remains for the Supreme Court, private accrediting organizations, and individual practitioners to fill in the appropriate blanks. For maximum public and professional gain, let’s keep to the task.
January 24, 2007 – Governor Corzine signs S-1467, New Jersey’s “Irreconcilable Differences” statute, into law. State Bar Association recognizes Hanan M. Isaacs for “hard work in advancing this very important bill, now law!”
October 13, 2004 – Hanan Isaacs Is Called ‘Instrumental’ in NJ Legislature’s Passage of Uniform Mediation Act
Uniform Mediation Act Appears Bound for Law in New Jersey
October 13, 2004
By Justin Kelly, ADRWorld.com
The Uniform Mediation Act and its broad confidentiality protections for mediation communications sailed through the New Jersey Assembly on Friday, and Gov. James McGreevey is expected to make the act law in his state.
Sean Darcy, spokesperson for the governor, said the bill adopting the Uniform Mediation Act (UMA) “is on the governor’s desk for consideration and we expect him to sign it.”
S. 679 was adopted without opposition in the Assembly Oct. 7 after gaining unanimous approval by Senate lawmakers earlier this year.
The UMA provides mediation participants with a privilege to refuse to disclose or have others disclose mediation communications, aiming to foster more uniform treatment of communications across the country. The act is now law in Illinois and Nebraska, and bills are currently awaiting action in New York, Vermont, Massachusetts, Ohio and the District of Columbia.
Hanan M. Isaacs, an attorney and ADR neutral in Kingston and who was instrumental in its introduction and passage in New Jersey, said the bill’s easy passage through the legislature was due in part to the work put in before its introduction to address any concerns from the legal community, ADR practitioners, labor groups and other interested stakeholders.
According to Isaacs, the main issue that had to be worked out was the UMA’s impact on mediations involving the Public Employment Relations Commission and the State Board of Mediation. There were concerns that a “uniform approach would harm existing protocols,” he noted.
Another concern was the reporting requirements for neutrals, which runs contrary to the reporting restrictions for mediators contained in the uniform act, Isaacs said. All of the concerns were allayed by exempting from the bill mediations involving both state agencies, he said.
In most other respects the bill closely tracks the language adopted by the National Conference of Commissioners on Uniform State Laws and the American Bar Association.
S. 679 does contain a provision — offered to the states to adopt on an ad hoc basis — that would require a mediator to conduct a mediation in an impartial manner unless the parties agree otherwise.
The only other changes were made solely to conform the act to New Jersey practice and terminology, Isaacs said.
However, the Supreme Court will have to conform existing court mediation rules to the UMA, he said.
According to Isaacs, conflicts exist between the court mediation rules on attendance at mediation and confidentiality. In court-connected mediations, a mediator may only report communications if he or she believes they constitute a threat of bodily injury or death, while the UMA contains a slightly broader range of situations where a mediator can report communications.
In addition, in New Jersey a person may only bring a representative or companion to mediation if the other parties consent, while the UMA gives parties an unfettered right to bring representatives to mediations. These issues will have to be “ironed out” with the court, he added.
Passage should have a major impact on mediation in the state but neutrals and advocates must be educated on the provisions of the UMA and how they impact the conduct of mediations, Isaacs said. In particular, parties will have to understand their right under the UMA to structure confidentiality according to the their needs, he noted.
December 7, 2001 – Hanan Isaacs’ Innovative Law and Mediation Firm Celebrates 20 Years
NEWS— FOR IMMEDIATE RELEASE
Kingston, NJ (December 13, 2001) – The Law and Mediation Office of Hanan M. Isaacs, P.C., located in Kingston, New Jersey, is celebrating its 20th Anniversary. Founded in 1981 by Hanan Isaacs, one of New Jersey’s best-known advocates and practitioners of Alternative Dispute Resolution, the firm has grown over two decades into a distinctive practice.
Isaacs, who has been described as a man with vision, has developed a unique approach to conflict resolution. As a result, the firm takes a holistic approach to client problems, working not only as ADR specialists, negotiators or litigators, but also as consultants to clients in difficult circumstances. According to Isaacs, “We help people develop their options and maximize their outcomes, whether in negotiations or formal dispute resolution processes, including court. Our clients become integral members of the team, together with top flight experts in business, finance, psychology and allied fields.”
The firm, which has a statewide reputation for its leading edge mediation, is also known for its excellent work in general litigation, family and divorce law, and labor and employment disputes. Isaacs says, “The firm’s forte has always been as advocates for people in negotiations, often in a litigation context.” For the past few years, the firm has concentrated on divorce and family law advocacy; labor and employment disputes on behalf of employees in public and private sector jobs; and general litigation (commercial, Chancery, criminal law, municipal court).
The firm’s ADR focus has attracted real talent. After clerking in the New Jersey State Superior Court, associate attorney Kimberly Gandy Jinks chose the firm four years ago because of its ADR emphasis. According to Jinks, “My primary focus has been on family, employment and commercial disputes, but I have seen
our clients greatly benefit from the firm’s high quality negotiating and emphasis on Alternative Dispute Resolution.”
Hanan Isaacs was President of the New Jersey Association of Professional Mediators (NJAPM) from 1999-2001. He chaired the Dispute Resolution Section of the State Bar Association from 1996-1998. He served on the New Jersey Supreme Court’s Complementary Dispute Resolution Committee from 1995 to 1999 and taught at Seton Hall Law School in 1998.
Recognized as ADR Practitioner of the Year 1999-2000 by the Dispute Resolution Section of the New Jersey State Bar Association (NJSBA) and General Practitioner of the Year 1994 by the NJSBA, Isaacs is a frequent journal author, television contributor and public speaker. He also served for many years as a commercial and personal injury arbitrator for the American Arbitration Association – NJ Regional office. He currently serves as an accredited commercial and divorce mediator for the NJAPM.
April 6, 2004 – FAA Told Plaintiff He Was ‘Wrong Color For The Job’: Kingston Attorney Hanan Isaacs Tries Employment Discrimination Case
NEWARK, N.J., Apr 6, 2004 /PRNewswire via COMTEX/ — Attorney Hanan M. Isaacs will try the nationally significant employment discrimination case of Michael C. Ryan, who alleges that the Federal Aviation Administration (FAA) passed him over for promotion because he is white and male. The case, Michael C. Ryan v. Norman Y. Mineta, Secretary, U.S. Department of Transportation, pits merit promotion principles against an unlawful affirmative action program.
In a rare legal move, John W. Bissell, Chief Judge of the Federal District Court, District of New Jersey, granted Ryan’s motion to sue the federal government for violating his constitutional rights to equal protection under the law. Judge Bissell will try this case under both Title VII of the United States Code and the U.S. Constitution’s equal protection clause before a jury starting April 28, 2004. Hanan M. Isaacs, Kingston, NJ, is representing the plaintiff, Mr. Ryan. US Attorney Christopher Christie, is representing the Secretary of the US Department of Transportation.
Ryan, with the FAA since 1976, is a white male employee at the FAA’s William J. Hughes Technical Center in Atlantic City, NJ. The FAA has repeatedly denied Ryan’s promotion bids, despite his respected 28-year FAA career.
“We will show that Ryan was denied promotions because, as stated by an FAA employee who worked for one of the selecting officials, he was “the wrong color for the jobs,” says Isaacs.
Ryan will show that the FAA used an unwritten but well publicized “50-50” policy, under which FAA managers were required, as a condition of their own performance reviews, to promote women and minorities at least 50% of the time. Ryan’s lawsuit seeks to have those policies declared void as a matter of federal constitutional and statutory law. Ryan seeks a promotion, back pay, pain and suffering damages, counsel fees, a declaratory judgment, and injunctive relief.
About Hanan M. Isaacs
Hanan M. Isaacs is Past President, NJ Association of Professional Mediators and Past Chairman, Dispute Resolution Section, NJ State Bar Association. He served on NJ Supreme Court’s Complementary Dispute Resolution Committee and is Master of two Inns of Court. Recognized by the NJ Bar as “ADR Practitioner of 1999-2000” and “General Practitioner of 1994”, Mr. Isaacs is a frequent journal author and public speaker.
SOURCE Hanan Isaacs
Katherine Kish, +1-609-799-8898, Mekish@aol.com, for Hanan Isaacs
October 26, 2004 – FAA Settles White Male Worker’s Bias Case, Agrees to Review Affirmative Action Policies
The Federal Aviation Administration has settled the reverse race and sex discrimination claims of a white male employee and, in a separate consent order approved by the U.S. District Court for the District of New Jersey, agreed to conduct a review of its hiring and promotion policies to ensure that they comply with federal law (Ryan v. FAA, D. N.J., No. 9904128 (JWB), consent order approved 10/6/04).
Although the FAA does not admit any wrongdoing in either the consent order or settlement agreement, the consent order requires the agency to complete a comprehensive review of its affirmative action policies and plans within two years, to ensure they are in compliance with relevant U.S. Supreme Court rulings and Equal Employment Opportunity Commission directives.
The consent order approved by Chief Judge John W. Bissell references a concurrent separate settlement agreement reached between FAA computer scientist Michael C. Ryan and the agency to resolve his claims of discriminatory nonpromotion.
According to Ryan’s attorney, Hanan M. Isaacs of Kingston, N.J., the agency agreed to promote Ryan and provide him a back pay differential of more than $62,000, plus interest, for the time he was passed over for promotion in favor of women and minority candidates. In addition, Isaacs said that the FAA agreed to pay attorneys’ fees of approximately $360,000.
The order requires that, rather than seeking enforcement of the order through the courts, the parties must resolve the matter through mandatory alternative dispute resolution. Through the order, parties agreed to use a three-step process of notification and discussion, mediation, and binding arbitration to resolve enforcement disputes.
Isaacs told BNA Oct. 26 that while an agreement to use alternative dispute resolution as an enforcement mechanism is widely used in private sector discrimination cases, it is a novel approach in the federal employment sector.
Ryan joined the FAA in 1976, and by 1986 had risen to the General Schedule 14 level. Between 1986 and 1995, he received “exceptional” or better performance appraisal ratings, according to his trial memorandum.
Beginning in 1995, Ryan began applying for promotions to supervisory and management level positions at the agency. Between 1995 and 1997, Ryan was turned down for eight positions. Seven of the eight positions were awarded to minority or female candidates, including one instance in which a black female candidate was groomed for the position through special training and awarded the position even though she had 13 years less seniority and experience than Ryan, Isaacs said.
Ryan filed administrative complaints alleging discrimination in violation of Title VII of the 1964 Civil Rights Act. Ultimately he filed a lawsuit in federal court.
In addition to his bias claims, Ryan alleged that he had been retaliated against for filing his administrative claims. He also added a Fifth Amendment equal protection claim, challenging the constitutionality of FAA’s affirmative action policies, which he alleged resulted in illegal discrimination depriving him of promotion. Ryan asserted that the agency routinely ignored merit system principles governing competitive hiring in its aggressive affirmative action campaign.
Ryan asserted that FAA paid special attention to promoting women and minorities and had an unwritten policy that 50 percent of all promotions be given to candidates from those groups. Agency officials were rated on their performance, in part, based on their aggressive promotion of minorities and women to meet the 50 percent policy, he alleged.
In his trial brief, Ryan alleged that a high-level FAA manager told him he was not selected for promotion and management training temporary assignments because he was “not the right color.” Ryan asserted.
In 2002, the court rejected FAA’s motion for summary judgment, and a 22-day trial was held in 2004. During the trial, the court dismissed Ryan’s request for emotional distress compensatory damages and encouraged the parties to engage in settlement discussions.
At the end of trial, the parties entered court-supervised mediation. That effort resulted in the parties asking the court to approve the consent agreement.
Affirmative Action Challenged.
The consent order requires the FAA to study its policies to ensure that they comply with Adarand Constructors Inc. v. Pena, 515 U.S. 200, 67 FEP Cases 1828 (1995), in which the Supreme Court ruled that affirmative action minority set-aside programs for federal contracts had to be based on a showing of specific past discriminatory actions.
“The FAA here made no actual showing of past discrimination,” Isaacs said, noting that at trial FAA officials testified that the agency had not engaged in discriminatory hiring practices in the past.
FAA was so committed to trying to make the agency “look like America” that it used improper demographic information to show discrimination against racial minorities and women, Isaacs said. “The problem is that FAA was using the entire U.S. civilian labor force as a comparison instead of the group of workers with the kinds of specialized skills and work traits that the jobs in question demand,” Isaacs said. “Using the wrong demographics leads to unlawful discrimination,” he said.
At trial, Ryan elicited testimony from FAA officials that they knew FAA’s affirmative action plan was flawed. “Trial testimony showed that the FAA relied on manipulated statistics to create the impression that a lawful basis for discrimination against whites and males existed,” Isaacs said.
The consent order also requires FAA to follow EEOC’s Management Directive 715, which the commission unveiled in August 2003 (167 DLR A-2, 8/28/03). That directive, among other things, incorporates the Supreme Court’s Adarand ruling, Isaacs explained.
“There are systemic reverse discrimination problems at FAA,” Isaacs said. “We know that the culture is not going to change overnight, but the consent order allows employees access to information about hiring and promotion that can begin that process.”
FAA spokesman Greg Martin told BNA Oct. 27 that the agency was glad to reach a fair settlement of the nine-year- old case.
“The consent agreement upholds FAA’s commitment to a workplace free of discrimination in any form,” Martin said.
Jessica S. Allen, Maggie L. Hughey, and Pamela R. Perron of the U.S. attorneys’ office in Newark, N.J., represented the FAA.
By Donald G. Aplin