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The Beatles: Ethical Mediators ? ?You Can?t Do That!?

By Perry S. Itkin, J.D., M.S.

The year was 1964 and The Beatles recorded You Can?t Do That as the B-side of the single Can?t Buy Me Love ? you remember both songs, right?!? Seems just like Yesterday ? sorry, I couldn?t resist!

Anyway, have you ever been presented with the situation in mediation where one or both of the parties have brought [usually, unannounced] a non-party to the table ? of course you have! The party who brought this person says ?yes they?ll stay? and the other party says ?no? ? or, to put it another way, ?you say yes, I say no? or vice versa, ?you say goodbye and I say hello.? Can?t you just hear it ? Hello Goodbye [thank you, Beatles]!

Okay, back to 2007! What about the situation where each party brought a non-party with them and both parties not only agree but also insist that both of the non-parties can attend the mediation?

Is it permissible for a mediator to dictate, over the parties? objections, who attends mediation? Think like The Beatles!

Is it appropriate for the mediator to instruct non-parties they can not participate in mediation because the mediation is confidential? Think like The Beatles!

Is it a violation of confidentiality for a mediator to direct a party or parties that s/he can discuss mediation communications with someone who does not attend the mediation without consent of all parties? Think like MEAC!

What if the court order to mediate limits attendance to the named parties only? Think . . . .

Actually, you?ll find instructive answers to the above questions in two recent MEAC Opinions ?2006-007 and 2007-2004. Take a look, they are very worthwhile!

Have a happy and safe Labor Day Weekend!

To email me, click Perry S. Itkin.

Full post as published by Florida Mediator on August 30, 2007 (boomark / email).