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must be disclosed under a reasonableness standard. Prudence, | | professional reputation, and indeed common practice would compel | | the practitioner to err on the side of caution in close cases. | | Moreover, mediators with full-time or otherwise extensive | | mediation practices may wish to avail themselves of the common | | technologies used by law firms to identify conflicts of | | interest. Finally in this regard, it is worth underscoring that | | this duty to disclose conflicts of interest is intended to | | further party self-determination and the integrity of the | | mediation process, and is not intended to provide a cover or | | vehicle for bad faith litigation tactics, such as fishing | | expeditions into a mediator's professional or personal | | background. Such conduct would continue to be subject to | | traditional sanction standards. |
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| | | 2. Section 9(c) and (f). Disclosure of mediator's | | qualifications |
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| | | Sections 9(c) and (f) address the issue of mediator | | qualifications, and, like the conflicts of interest provision, | | are intended to further principles of party autonomy and | | informed consent. In particular, these Sections do not require | | mediators to have certain qualifications, specifically | | including a law degree; nor, unlike the conflicts of interest | | provision, do they impose an affirmative duty on the mediator | | to disclose qualifications. Rather, the mediator's obligation | | is responsive: if a party asks for the mediator's | | qualifications to mediate a particular dispute, the mediator | | must provide those qualifications. |
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| | | In some situations, the parties may make clear that they care | | about the mediator's substantive knowledge of the context of | | the dispute, or that they want to know whether the mediator in | | the past has used a purely facilitative mediation process or | | instead an evaluative approach. Compare Leonard L. Riskin, | | Understanding Mediators' Orientations, Strategies, and | | Techniques: A Grid for the Perplexed, 1 Harv. Negotiation L. | | Rev. 7 (1996) with Joseph B. Stulberg, Facilitative Versus | | Evaluative Mediator Orientations: Piercing The "Grid" Lock, 24 | | Fla. State Univ. L. Rev. 985 (1997); see generally Symposium, | | Fla. State Univ. L. Rev. (1997). Experience mediating would | | seem important to some parties, and indeed this is one aspect | | of the mediator's background that has been shown to correlate | | with effectiveness in reaching settlement. See, e.g., Jessica | | Pearson & Nancy Thoennes, Divorce Mediation Research Results, | | in Divorce Mediation: Theory and Practice, 429, 436 (Folberg & | | Milne, eds., 1988); Roselle L. Wissler, A Closer Look at | | Settlement Week, 4 Disp. Resol. Mag. 28 (Summer 1998). |
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| | | It must be stressed that the Act does not establish mediator | | qualifications. No consensus has emerged in the law, research, | | or commentary as to those mediator qualifications that will | | best produce effectiveness or fairness. As clarified by | | Section 9(f), |
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