The MGM Shooting Mediation and An Obvious Conflict of Interest – Updated

Two weeks ago, the Nevada state court approved the MGM Mandalay Bay shooting settlement.  No mention of mediator Jennifer Togliatti’s conflict of interest.  I didn’t see it mentioned in any of the other press about the case either.  Hmmm.

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You likely remember the MGM Mandalay Bay mass shooting from a couple of years ago.  With approximately 4500 plaintiffs, the case was mediated by two former state court trial judges (one from Las Vegas and the other from Los Angeles) resulting in a structured settlement like many mass tort claims are.

It turns out that the Mandalay Bay’s head of security the night of the shooting was . . .  (wait for it) . . .  the father of one of the mediators.  (!!!)  Jennifer Togliatti, the former Nevada trial judge now mediator, brought this conflict to the attention of the plantiffs’ lawyers, who didn’t have a problem with it.   Seeing no further issue here, she mediated the structured settlement over the next year.

As readers of this blog, I presume you see that this is an unwaivable conflict of interest and think of Section III(E) of the Joint Model Code for Mediators which states:

If a mediator’s conflict of interest may reasonably be viewed as undermining the integrity of the mediation, a mediator shall withdraw from or decline to proceed with the mediation regardless of the expressed desire or agreement to the parties to the contrary.

Not surprisingly, this conflict could “reasonably be viewed as undermining the integrity of the mediation.”  Togliatti should have refused the engagement.  Why she failed to do so is not clear.  And the argument that the Joint Model Standards don’t apply in Nevada doesn’t cut it.

For more details, see my short piece in the most recent issue of Alternatives.   Note that it is a subscription magazine, you may have to request it from your library.  If you prefer more detailed press reports, go here and here.  And finally, thanks to the folks at local NBC affiliate KPNX for asking me to comment on the case.

4 thoughts on “The MGM Shooting Mediation and An Obvious Conflict of Interest – Updated”

  1. I agree with Art’s analysis of the severity of the conflict of interest, which placed the mediator under an ethical duty to decline the case or withdraw from it irrespective of the parties’ choice of her as mediator, because of the duty owed to the profession of mediation, to her fellow mediators and the public to maintain the integrity of mediation. I want to add another point. There is a risk that both mediators and the public interpret the court’s decision to uphold the mediated agreement as approval of the mediator’s ethical choice of accepting the case. It could send the wrong ethical message to mediators, when in fact the legal question of the agreement’s validity and the ethical propriety of the mediator’s conduct are separate issues. I think that Art’s voice on this issue is very important and should be supported by professional mediator organizations publications/opinions, e.g. the ABA DR section’s ethics committee and state mediation associations. It is important to stress that this is not a disciplinary accusation/process against the mediator. That is not the point. It is about sending the right message to mediators and the public in order to preserve the integrity of the process and instill public trust in the profession of mediation.

  2. Kristen Blankley and I were planning on having a conversation this year in the ABA Ethics committee about the distinctions between arbitrator conflicts and mediator conflict waivers.

    I wonder if some of this doesn’t boil down to a conflating of those two things. Anecdotally, I’ve certainly observed a difference between neutrals and their approaches to conflicts based on whether they primarily identify as arbitrators or mediators.

  3. Erin raises an interesting question about the differences between the ethical duties of arbitrators and mediators. And there are of course. But if you consider for a moment the duty of integrity (to protect the integrity of the process and preserve public trust in the process and profession) you will note, I think, that both Arbitrators and Mediators share this duty, and that the type of undisclosed relationship in the case discussed would undermine integrity in both processes. The problem, again, is with the legalization of ethics, whether it is mediators’, arbitrators’, or judges’ ethics. We should be able to distinguish between the legal concept of conflicts of interest and integrity (the court’s likely determination on that issue), and the ethical meaning of these concepts, which is affected by the legal meaning but is not determined by it. Thus, as with the mediator, the ethical question for the arbitrator in terms of ethical conduct is not restricted to whether a court of law would disqualify her or vacate her arbitral award; it also involves her duties to the arbitration profession including her colleague-arbitrators and the public at large who are are affected by her conduct. I think that your and Kristen’s idea to discuss these issues in the ABA Ethics Committee is wonderful!

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