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Summary of Advisory Opinions
 
(NOTE: To view the full text of Advisory Opinions and to do a Ctrl+F key search of the full Opinions, Click here , or use the Ctrl+F key search for the summaries below.)
Advisory Opinion Number Summary of Advisory Opinion

Any discrepancies between published Advisory Opinions and the Summaries below are to be construed in favor of the Full Opinion.

08-14 This Advisory Opinion addresses a proposal to form a panel of volunteer mediators willing to serve pro bono in mediations involving clients of legal services organizations. The Opinion discusses fees, including disclosure of waiver and negotiation of the shifting of payment to another party, both in the context of service on the proposed panel and in the context of any other mediation where a mediator has agreed to serve pro bono or for a reduced fee relative to at least one party.
07-13 A mediator should not compromise his/her neutrality by overtly accusing a party of being untruthful during mediation or by using language tantamount to such an accusation. A mediator should not confront a party in a hostile or abusive manner. Such actions compromise the mediator’s neutrality. A mediator should not use profane language during mediation even if the parties or their lawyers are using such language.
07-12 A court-appointed mediator distributed a copy of an agreement to mediate and asked the parties to sign it prior to their mediated settlement conference. The agreement contained terms that modified and even ran counter to program rules and the Standards of Professional Conduct for Mediators. The Commission determined that a court appointed mediator may not, though the use of an agreement to mediate, modify program rules or the Standards.
07-11 Mediator failed to reduce the terms of an agreement reached in mediation to writing in accordance with MSC Rule 4.A.(2) and 4.C. Moreover, mediator should not have reported to the Senior Resident Superior Court Judge in his Report of Mediator that the case had been settled when there was no writing. Mediator should have accompanied the parties on their site visit to ensure that all the details were ironed out and then assisted them in reducing their agreement to writing.
06-10 MSC Rule 4.A.(1) addresses who shall attend a conference. Pursuant to Rule 6.A.(1), the mediator has discretion to determine who else may be present. If there is a dispute between the parties regarding whether an individual may attend, it is best practice for the mediator to try and mediate the matter first. If the mediator cannot help the parties reach an agreement on the issue, then the mediator should make a determination as the whether the individual in question may attend.
06-09 The mediator has a duty to warn parties when confidentiality is breached and parties are at financial or other risk because of the breach. The situation which gave rise to this opinion involved financial information that was removed from a mediator's laptop during service and that could not be re-located and restored.
05-08 It is the duty of the mediator, and not that of the parties, to schedule the mediation within the timeframe established by the court for completion.
04-07 Upon learning that a bankruptcy petition has been filed in a case, a mediator shall report to the court that the bankruptcy has been filed and shall request that the judge who referred the matter to mediation advise the mediator as to whether s/he should hold the conference.
04-06 A mediator who conducts a mediation for a couple that is separating may not thereafter represent either the husband or wife in divorce proceedings.
03-05 As long as he or she does not reveal any confidential information, a mediator may, following an impasse, continue to assist a party or parties who contact the mediator in an effort to revive discussions or to clarify something that was said at mediation. If the mediator believes that the party who contacted him/her has a nefarious motive, the mediator is not obligated to respond or to involve him or herself further in the matter.
03-04 It is discretionary with individual mediators as to how long they retain mediation files, but mediators should consider confidentiality concerns in making decisions regarding file retention.
01-03 Confidentiality is integral to the success of the mediation process. Mediators should be vigilant in their efforts to preserve confidentiality and should not give affidavits or testify in court as to statements and conduct occurring in connection with a mediation unless the communication is permitted by an exception set forth in a statute or Standard.
00-02 It is preferable for parties to physically attend a mediation conference rather than participating by telephone. A mediator should not waive or modify the attendance requirement absent some compelling reason to do so.
99-01 Once a case has been ordered to mediation, a mediator has a duty to assemble the parties and hold the conference prior to the deadline for completion. A mediator may not simply report an impasse based on a representation by the parties that the case cannot be settled.
 
  
 
   
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