Tuesday, February 21, 2006

The Impartiality Hokey-Pokey!

According to the Second District Court of Appeal in Stevens v. Americana Healthcare Corp., 2006 Fla. App. LEXIS 1536 [Fla. 2nd DCA 2006], a writ of prohibition was issued against a trial judge, who first suggested he could not be impartial and then changed his mind when a party moved to disqualify him, and denied the motion to disqualify.

The judge voluntarily disclosed a personal or social relationship with some of the witnesses [a good move], invited the parties to make a motion for disqualification [another good move], suggested it would be granted [an even better move] but then denied the timely motion [a very bad move]. The appellate court did not believe that the trial judge’s voluntary disclosure of his friendship or acquaintance with some of the witnesses who might testify at trial in this matter was sufficient by itself to require the judge's disqualification. It was the judge’s remarks thereafter that lead to his disqualification.

What can mediators learn from this opinion?

Well, for starters how about Florida Rules for Certified and Court-Appointed Mediators, Rule 10.340(a) and (c), Conflicts of Interest?

(a) Generally. A mediator shall not mediate a matter that presents a clear or undisclosed conflict of interest. A conflict of interest arises when any relationship between the mediator and the mediation participants or the subject matter of the dispute compromises or appears to compromise the mediator’s impartiality.

(c) Effect of Disclosure. After appropriate disclosure, the mediator may serve if all parties agree. However, if a conflict of interest clearly impairs a mediator’s impartiality, the mediator shall withdraw regardless of the express agreement of the parties.

All to say, conflicts of interest and impartiality are closely connected [but you knew that, right?!?] and something we should always be attentive to.

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