hurt, or that they felt slighted because they
weren’t invited to the neighbor’s party.
During the process the mediators recognize that the disputants’ emotions are an
integral part in the long-lasting effect of
the resolution. By detaching the anger and
negative emotions, the parties’ attention is
refocused on their past history of good
relationships, values, behaviors and mutual
interests, allowing recognition that a resolution to the current issue will allow them
to focus on a continued good relationship
in the future.
Conflict brings about stress in both our
personal and work relationships. Numerous
studies focus on the effect of stress, job satisfaction and work productivity. Stress also
brings about conflict. Today many businesses are embracing the results of recent
studies that have found that a high emotional quotient (EQ) lends itself to a better
health, satisfaction and relationships; those
businesses use many of the same social,
interpersonal and soft skills that are routinely used by mediators.
Not surprisingly, stress at work also seems
to follow people home, as does the lingering
negative attitude about one’s job. In one of
our discussions regarding work ethics and
conflict, an 11-year-old child simply put it
this way: “If you enjoy what you are doing,
then you will never work a day in your life.”
For the optimist, this might be interpreted
as enjoying one’s job so much that it doesn’t seem like work. For the pessimist this
might be interpreted as hating one’s job so
much that if they work they will never find
enjoyment in life.
Feeling positive, whether at work or at
home, reduces stress, and stress reduction
includes feeling that one has control over
the outcome. Mediation teaches and rein-
forces the long-lasting effects of positive
for the Mediatior
The most widely used set of standards governing mediator conduct today is found
in the Model Standards of Conduct for
Mediators. Development of these standards was a collaborative effort between
the American Arbitration Association,
the American Bar Association’s Section of
Dispute Resolution, and the Association for
Conflict Resolution, formerly the Society
of Professionals in Dispute Resolution.
In 2001 the Uniform Law Commissioners,
in collaboration with the American Bar
Association’s Section on Dispute Resolution, created the Uniform Mediation Act,
which provides numerous examples of ethical dilemmas facing mediators. To date,
the act has been adopted in a dozen states
(but not in Arizona). 5 For those who are
serving in a court-connected mediation
program, there is a comprehensive set of
ethics set forth in the National Standards
for Court-Connected Mediation Programs.
Promoting confidence in the mediation
process and the use of mediation as a peacemaking tool has been around for the past
30 years as standards of conduct for mediators developed. In the past three decades,
lawsuits against mediators were infrequent
because of the confidential nature of the
mediation process. However, as the use of
mediation has increased, so have the lawsuits against mediators.
Claims against mediators most frequently appear in failure to disclose conflict of
interest cases and breaches of confidentiality.
These conflict of interest cases address neu-
trality by examining whether the mediator
had any biases and, if so, whether the medi-
ator refrained from acting on them. Most
cases dealing with breach of confidentiality
involve information obtained during medi-
ation that was subsequently improperly dis-
Lawsuits against mediators have been
filed in a number of different disciplines. In
2011, in a family law matter, a woman in
Tennessee filed a $15 million suit against
the mediator claiming that the mediator
had given her husband legal advice following the mediation. The court dismissed the
lawsuit and concluded that whether the
advice had been made in her role as a mediator or outside the role of mediator there
would be no liability. In that case the court
reasoned that if the statement had been
made during the mediation process, then
immunity would bar the claim. On the
other hand, if it was made outside the
mediation process, then she owed no legal
duty to the plaintiff. 7
Mediation has come to age in the new
millennium. As courts continue to become
backlogged, lawyers, judges, plaintiffs,
defendants, employers, employees, neighbors, landlords, tenants, husbands, wives
and many, many other individuals and
disciplines are turning toward mediation as
a swift and successful resolution to their
disputes. In addition, mediation provides
healing to the wounds surrounding the
dispute and provides skill-building for the
disputants to apply to future potential disputes.
www.azbar.org/AZAttorney 48 ARIZONA ATTORNEY FEBRUARY 2015
Mediation as a Healing Art
1. Warren E. Burger, Mid-Year Meeting of the
American Bar Association, 52 U.S.L. W.
2461, 2471 (Feb. 28, 1984).
2. Warren E. Burger, Isn’t There A Better Way?
68 A.B. A.J. 274, 275 (1982).
3. Abraham Lincoln, Notes for a Law Lecture
(July 1, 1850).
4. Richard Calkins, RUTGERS CONFLICT
RESOLUTION L.J. 6(2008), 1-68. Web.
June 30, 2014; quoting Chief Justice
5. See www.uniformlaws.org/Act.aspx?title
6. For a discussion of specific lawsuits against
mediators, see Michael Moffitt, Ten Ways to
Get Sued: A Guide for Mediators, 8 HARV.
NEGOT. L. REV. 81 (2003).
7. See description on page 2 of
As the use of mediation has
increased, so have the lawsuits