In his blog Mediator Blah…Blah, mediator (and barrister) Geoff Sharp posted an entry last month about an incident that occurred at a holiday party thrown by one of his clients.  Among the blog responses he received was a suggestion that he ought not to have been attending a holiday party offered by a former client at all.  The implied suggestion was that these clients might be current or future clients, and that Geoff’s attendance might jeopardize his impartiality or neutrality or some similar notion.  

 To his credit, Geoff ran with the postings.  Might his attendance have created an appearance of bias?  Might it have created actual bias?  And so on.  Geoff guesses that John Lande might cast the first stone, citing John’s law review article in which he names repeat business as a potential source of bias.  And invariably someone cited to the frustratingly pervasive articulation of mediator ethics found in the Model Standards.

 It’s a new year, and thus, whatever internal meter causes me to know when I’ve hit my blasphemy limit seems to have reset itself.  I believe myself absolved, the owner of a clean professional slate.  With that status in mind, I suggest that Geoff did nothing wrong and that more of us ought to do similarly.  My posting to his site follows: 

I received an invitation to a party a while back from an organization for whom I had mediated a couple cases.  I accepted with enthusiasm and asked whether I could bring lead counsel for the other side from the most recent of the cases.  To their credit, without missing a beat, they said, “Sure.”  (The whole thing didn’t wind up happening, so I’m afraid there’s no clever coda to this story.) 

But I would hope that mediators would not carve such a narrow role conception for themselves that they can envision being useful (ethical?!!) only in circumstances in which they limit themselves to what amounts to quasi-judicial contact with clients and prospective clients. 

To the extent there’s a problem in Geoff’s story (and I’m not yet persuaded that there is one here), it would seem largely curable by a robust mediator disclosure. 

Or by getting invited to everyone’s party…

 Michael Moffitt