Tools to Help Achieve and Maintain Neutrality
By Lee A. Schwartz and Carolyn M. Zack
As family lawyers, we practice the art of civil litigation as we would engage in battle. We burnish the armor of our client’s cause, shore up weak links with creative theories, root out weak-nesses in the opposition’s lines of defense and charge ahead to advance our client’s objectives. Some of us have been honing these litigation skills for many decades. How, then, do those of us who also act as family law mediators, collaborative lawyers or arbitrators put the brakes on this winner-takes-all mentality and adopt the lens of an independent neutral? As alternative dispute resolution (ADR) facilitators, we assist participants in achieving a fair and balanced result. Switching roles from advocate to neutral can be a tricky mental adjustment, which is even more challenging when the neutral litigates regularly against other lawyer participants. This article explores the tools that the family lawyer who also serves as a mediator, collaborative lawyer or arbitrator can use to help achieve neutrality and become a more effective and sought-after neutral. It also addresses a recent decision in the Angelina Jolie-Brad Pitt custody case that provides guidance for avoiding challenges to neutrality based on ongoing business and other relationships.
1. Disclosing and Waiving Initial Conflicts
Mediation, effectively, is assisted settlement negotiation. Parties come to a mediator at many different stages of their conflict. Some have the framework of a settlement worked out and want the mediator to draft the agreement to formalize that under standing. Others are “starting from scratch” and have no idea how to resolve their dispute. They have marital property that needs to be divided. They have children, need a custody schedule and a perhaps a support agreement. Other than those broad-brush strokes, they don’t know what other issues they may need to address. The mediator’s work can be broken down into a series of steps — starting with ensuring that the mediator discloses any personal or financial relationships that may bear on his or her ability to act impartially.
The Pennsylvania Rules of Professional Conduct (RPC) do not specifically require disclosure of conflicts by lawyers acting as neutrals. Instead, RPC 2.4, Comment 2, recognizes that the role of third-party facilitator, evaluator and decision-maker is not unique to lawyers and, in performing this role, the lawyer may be subject to court rules or other laws that apply either to third-party neutrals generally or to lawyers serving as third-party neutrals.
In the absence of rules applied by agreement of the parties or order of court, the mediator should adhere to the highest ethical standards, including the International Institute for Conflict Prevention and Resolution (CPR)’s Model Rule for the Lawyer as Third-Party Neutral, the Model Standards of Conduct of Mediators adopted by the American Bar Association (ABA) and the Association for Conflict Resolution in 2005, and the Standards of Practice for Professional Family Mediators adopted by the Academy of Professional Mediators in 2014. These ethical guide lines require that the mediator conduct the proceedings in an impartial, unbiased and even-handed manner.
The CPR Model Rule recommends the most detailed approach to establish impartiality in Section 4.5.3(b):
(1) The mediator-lawyer must disclose to the parties all circumstances, reasonably known to the lawyer, why the lawyer might not be perceived to be impartial. These circumstances include (i) any financial or personal interest in the outcome, (ii) any existing or past financial, business, professional, family or social relationship with any of the parties, including, but not limited to any prior representation of any of the parties, their counsel and witnesses, or service as an ADR neutral for any of the parties, (iii) any other source of bias or prejudice concerning a person or institution which is likely to affect impartiality or which might reasonably create an appearance of partiality or bias, and (iv) any other disclosures required of the lawyer by law or contract.
For the family lawyer considering an assignment as mediator, this disclosure step requires a deep dive not only through the lawyer’s client list, but also creation of a co-counsel/opposing counsel list and an ADR list, which the lawyer can consult as needed. Under the CPR Model Rule, these disclosures extend to the lawyer’s immediate family, current employer, partners or business associates, requiring that the lawyer make inquiry of these individuals in creating those lists. Full disclosure of all actual and potential conflicts is important at the outset of the communication with the parties before the mediation agreement is signed and, ideally, should be confirmed within the mediation agreement itself. If the parties and their attorneys, if any, do not waive the conflict, the lawyer should decline the assignment. If the lawyer believes that the connections he
or she has with the parties or the subject matter would appear to a reasonable person to preclude a fair and objective outcome, the lawyer should decline the mediation even after the parties expressly consent. The lawyer has a continuing obligation to disclose any new conflicts during the proceedings. The lawyer-mediator’s ability to achieve neutrality depends on transparency and commitment to impartiality from the outset.
2. Ongoing Duty of Disclosure
The lawyer-mediator’s duty of disclosure does not end with the signing of the mediation agreement. All of the ethical guidelines recommend that after accepting appointment and while serving as a neutral, the lawyer should not enter into any financial, business, professional, family or social relationship or acquire any financial or personal interest that is likely to affect impartiality or that might reasonably create the appearance of partiality or bias without disclosure and consent of all parties. RPC 1.12(a) provides that after the mediation
is concluded, the lawyer-mediator shall not subsequently represent any party to the ADR proceeding in the same or a substantially related matter unless all parties consent after full disclosure. RPC 1.12(b) prohibits the lawyer from negoti-ating for employment with any party or attorney for a party in a matter in which the lawyer participated personally and substantially as a third-party neutral. The CPR Model Rule extends further to preclude a lawyer who has served as a third-party neutral from representing a party adverse to a former ADR party where the lawyer-neutral has acquired confidential information, without the consent of the former ADR party.
These standards preserve the integrity of the mediation process. Before later developing personal or professional relationships with the parties or other participants, the mediator should consider the time elapsed following the mediation, the nature of the relationships established and the services offered to determine whether these relationships may create a real or perceived conflict of interest.
3. Disclosure of Role as Neutral
Pursuant to RPC 2.4(b), a lawyer serving as a third-party neutral shall inform unrepresented parties that the lawyer is not representing them. When the lawyer knows or reasonably should know that a party does not understand the lawyer’s role in the matter, the lawyer shall explain the difference between the lawyer’s role as a third-party neutral and a lawyer’s role as one who represents a client. The comment to this rule explains that the potential for confusion as to the lawyer-mediator’s role is significant, especially for unrepresented parties. The level of explanation may vary depending on the party’s prior experience with ADR, but must ensure that the par-ticipants understand that the mediator is not an advocate for either party and the
attorney-client privilege does not apply in this context.
The mediator should also explain to the participants how the role of mediator differs from other professional roles, such as expert or therapist and, in appropriate cases, encourage the parties to consult such other professionals and obtain advice, representation or treatment. These preliminary disclosures by the mediator and informed, written waivers of any actual or potential conflicts by the parties and their counsel pave the way for an eyes-wide-open proceeding where all participants are and perceive themselves to be on an even playing field.
4. Compartmentalizing the Attorney in Us All
As litigators, we have been trained to act in a certain way. We direct our clients toward the best result for them; we provide seasoned legal and practical advice to them each step along the litigation path; we identify weaknesses in the other side’s case and we suggest solutions. Mediation is totally different. Not all attorneys are good mediators. There are several bright-line rules that help the mediator move away from that attorney mindset toward neutrality.
a. Not Providing Legal Advice
This is one of the more difficult habits for a litigator to overcome. The mediator should encourage each party to have his or her own attorney. Separate representation for each party avoids the inevitable problem of a party asking the mediator for legal advice that the mediator may not provide. The mediator providing legal advice to one party is unethical and inappropriate. By having their own legal “sounding board,” the parties are much better supported through the process.
b. Not Advocating for a Result
Again, this is a difficult habit to break. We have been trained as litigators to advocate on behalf of a party and to get the “best” result as we perceive it. The goal of mediation is to allow the parties to achieve their own resolution, which may or may not be “fair” in the eyes of the mediator. There is a huge difference in advocating for a client rather than advocating for a successful resolution tailored to the individual needs and objectives of the parties.
c. Using Caucus Prudently
Mediators have a tool called caucus to assist a party who is stuck on a position to find options for a resolution acceptable by the other party. The mediator seeks to avoid impasse or termination of the mediation process. In doing so, the mediator must avoid the appearance of aiding one party to the detriment of the other party. The mediator should explain to both parties the potential benefit of the caucus and use the caucus sparingly, without advocating for a specific result.
B. COLLABORATIVE LAW
Collaborative law is another means of reaching a nonlitigation result. Collaborative practice is a blend of ADR methods, including mediation aspects, together with parties having their own lawyer to represent them and that lawyer being “in the room” during the collaborative process. Collaborative lawyers are specially trained in the collaborative process. Along with collaboratively trained lawyers, there can be collaboratively trained mental health professionals, financial experts, real estate professionals, mortgage professionals and other professionals.
Once retained, the two lawyers will communicate and put together a “team” of professionals to assist in the process. At times, the team can be made up of just the two lawyers. Sometimes, a party needs mental health support in the process, so a trained mental health professional will be on the team. In other cases, a party was not involved in financial decisions during the marriage, or the party has a business or complicated financial holdings, so someone who has financial expertise will also be a part of the team.
The main challenges to collaborative lawyers are:
1. Moving Away From Being “Result Oriented” to Being “Goal Oriented”
The biggest challenge to a collaborative lawyer is to avoid suggesting results early in the process rather than inquiring about the goals of the participants. Traditional representation is, by its nature, results-oriented, i.e., “How can I get the best result for my client?”
In the first team meeting, the parties are asked to identify their short- and long-term goals; the collaborative lawyer should not raise how to achieve those individual goals. By working together to identify and satisfy the parties’ mutual goals, the team helps the parties to achieve results by compromise. In collaborative practice, we are looking for a resolution that meets the needs of the family as a unit.
2. Sharing Knowledge Between Parties and Counsel
For the collaborative process to work, the lawyers need to assist the parties in providing complete disclosure and honesty, even if disclosure is not in one party’s best interest. Conversely, traditional litigation may result in some parties or lawyers “hiding the ball.” This includes keeping information from the other party if that information is not required to be disclosed by law and hasn’t been requested by the other party.
3. Not Threatening Litigation
In traditional litigation, an attorney might threaten to file a motion or take other legal action if a party is not agreeing with his or her client’s position on a topic. That type of conduct is strictly forbidden in collaborative practice. If a party is not agreeing to the other party’s position, the next step is to find another solution that will meet the party’s goals. If one party refuses to cooperate or the parties mutually decide to terminate the process, then the lawyers withdraw from the representation and the parties must start afresh with new counsel in litigation.
1. Establishing and Maintaining Impartiality
Many of the same duties to establish impartiality in mediation apply to family law arbitration, including: (1) disclosing and waiving initial conflicts, (2) ongoing duty of disclosure and (3) disclosure of the attorney’s role as neutral. The importance of the arbitrator’s role in making disclosures to maintain neutrality was recently illustrated in the Angelina Jolie-Brad Pitt custody case, Jolie v. Superior Ct. of Los Angeles Cty., No. B308958, 2021 WL 3123763 (Cal. Ct. App. July 23, 2021). The Second Appellate District Court of Appeal of California disqualified a private judge the parties retained in their custody matter for failing to sufficiently disclose business relationships with Pitt’s attorneys.
The Court of Appeal found that grounds for disqualification existed under the state’s Code of Judicial Ethics, which required the private judge to disclose facts that may cause a person to “reasonably entertain a doubt that the … judge would be able to be impartial.” In that case, the Court of Appeal concluded that the private judge’s involvement in two previously undisclosed matters involving Pitt’s counsel — “thereby renewing and expanding a relationship with lawyers who had in the past attained the status of significant repeat-players” — coupled with the private judge’s failure to voluntarily disclose these matters to Jolie and her new lawyer (who had no prior professional relationship with this judge) could cause a “person on the street” to reasonably entertain a doubt as to the judge’s “ability, consciously or unconsciously, to remain impartial in the upcoming, hotly contested custody dispute.” While the Court of Appeal’s decision is based on the state’s ethical rules applicable to judges, the same result could easily apply in a private arbitration matter in which an arbitrator fails to disclose relationships with the parties’ counsel or their law firms, or new such relationships that develop during the proceedings. For these reasons, the CPR Model Rule 4.5.4(1)(4) recommends that where the circumstances might reasonably create the appearance that the neutral had been influenced in the ADR process by the anticipation or expectation of a subsequent relationship or interest, a lawyer who has served as a third-party neutral shall not subsequently acquire an interest in or represent a party to the ADR proceeding in a substantially unrelated matter for a period of one year or other reasonable period of time under the circumstances, unless all parties consent after full disclosure.
2. Ensuring Fairness and Integrity of the Process
Since the arbitrator will render a final, binding decision on important issues, the lawyer-arbitrator must strive to ensure that the process is fair. Pennsylvania’s Revised Uniform Arbitration Act, which applies to all agreements to arbitrate executed as of July 1, 2019, 42 Pa.C.S.A. Section 7321 et seq., provides the basic requirements for due process. The CPR Model Rule and the Code of Ethics for Arbitrators in Commercial Disputes approved by the American Arbitration Association and the ABA in 2004 offer additional ethical guidelines that help the lawyer-arbitrator achieve and maintain neutrality, including:
- The arbitrator shall decide all matters justly, using independent judgment and not permitting outside pressure to affect the decision.
- The arbitrator shall maintain the confidentiality of information acquired during the course of the arbitration.
- The arbitrator shall treat all parties with fairness and respect and freedom from bias or favoritism.
- The arbitrator shall not communicate ex parte with a party except to obtain general information about the case to determine the suitability of the appointment.
- The arbitrator shall make reasonable efforts to prevent delay tactics, harassment of the parties or other participants, or other abuse or disruption of the process.
These standards help to reinforce arbitration as a fair and reliable method of dispute resolution by preventing harm to the parties and promoting the public’s perception of the legitimacy of the process.
The family lawyer who undertakes the role of third-party neutral in a mediation, collaborative law or arbitration matter provides a valuable service for parties who seek to resolve their family law disputes outside of the court system. By helping the parties implement their chosen ADR method, the lawyer is facilitating a resolution that is much faster than going to court, is far less expensive than litigation and results in an agreement or award both parties “own.” With that result, it is far more likely that the parties will comply with their responsibilities. Before accepting this role, family lawyers should sharpen their tools to achieve and maintain neutrality, including understanding the role of the neutral in the specific ADR process, compartmentalizing the duties attendant to that role and adhering to the highest ethical standards. By using these tools throughout the process, family lawyers can effectively “switch hats” from advocates to neutrals, improve their success in resolving disputes fairly and gain recognition as dedicated and impartial ADR facilitators. ⚖
Trained by the American Arbitration Association, as well as in collaborative law and family law mediation, Lee A. Schwartz practices regularly in mediating equitable distribution, support, custody, divorce and pre-marital issues. As a presenter for the Pennsylvania Bar Institute, he teaches family law CLEs, as well as the yearly update of Law, Practice and Procedure in Philadelphia County Courts. Lee has practiced family law in the five-county Philadelphia area since 1981. He can be reached at 215-967-9070 or at email@example.com.
Carolyn M. Zack served as a family court hearing officer in the Chester County Court of Common Pleas, where she also presided over equitable distribution matters, for eight years. She joined the firm of Momjian Anderer LLC five years ago, where she practices family law, and acts as an arbitrator, mediator and parenting coordinator. Carolyn authored the book, Family Law Arbitration: Practice, Procedure and Forms, published by the ABA in August 2020. See https://www.americanbar.org/products/inv/book/402949740/. She can be reached at 267-546-3712 or firstname.lastname@example.org.
If you would like to comment on this article for publication in our next issue, please email us at email@example.com.