I am sure that many followers of this blog are aware that Raymond Ku, a professor at Case Western Reserve University’s Law School was suing its former Dean, Lawrence Mitchell, as well as the school. The case, Ku v. Lawrence E. Mitchell, et al., Cuyahoga County Court of Common Pleas Case No. CV 13 815935, is apparently settled. The parties issued a joint statement in which the mediator offers his opinion about the parties’ efforts during the mediation: http://www.chandralaw.com/The_Chandra_Law_Firm,_LLC/Blog_and_news/Entries/2014/7/8_Breaking__Joint_Statement_of_Professor_Raymond_Ku_and_Case_Western_Reserve_University_regarding_resolution_of_Ku_v._Mitchell%2C_et_al.retaliation_case.html. In this statement, the mediator, Michael Ungar, said, “In my opinion, Professor Ku acted in the best interests of students, staff, and faculty. . . .Likewise, in my opinion, the University has also acted in the best interests of the law school and all members of the school community. The devotion of both to students, staff, and faculty is unquestioned.” Ungar went on to add, “This has been a hard case, but everyone involved focused on finding a solution that would further the success and momentum of the law school. While the university and Professor Ku had significant differences regarding this matter, their sincere desire to act in the school’s best interests prevailed. I commend them all for their diligence, integrity, and willingness to look beyond individual disagreements and embrace collaboration toward a common goal. As is typical in these types of situations, the details of the resolution are confidential.”
Although the UMA, which is the law in Ohio, does not preclude the mediator from commenting to the press if the parties and the mediator agree to it, it seems odd for the mediator to express an opinion based on his evaluation of the parties’ actions and statements during mediation. Most mediators make a concerted effort not to engage in such evaluation during the mediation process.
I know virtually nothing about the details of this case, and I know nothing at all about the mediation or settlement in question. But I don’t know that it’s odd (or inappropriate) to have a mediator making a post-settlement public statement about a case, particularly if the parties have consented. Indeed, I can imagine that such a public statement might be an important part of a resolution. A mediator’s voice is typically heard differently than that of parties or their attorneys. I know that I have been asked by parties, on occasion, to make a public statement pre- or post-settlement, because they judged that it would have an impact on some audience beyond the named parties to the lawsuit. I have not often said Yes, but it’s not an uncommon question, at least, I think. Again, not sure that’s what happened here, but that was my assumption in reading this.
Possible fun Mediator Ethics question for a law school final exam, “The parties are nearing settlement, and an important component of the deal is a joint statement to the media, the wording of which has been the subject of hours of negotiation. The parties and their attorneys want the statement to include a quote from you, the mediator. You don’t love the quote they’ve drafted for you (for this or that reason, you can tinker with this part). But the parties insist that having your voice in the statement is important, and they are willing to settle the case if you agree to the carefully crafted quotation from you. How would you… etc etc” The wording of the question needs work, but the idea is a fun one.
MM