Tuesday, March 21, 2006

“What Conflict? I’m Impartial!”

Although this is an arbitration case [and it’s a long one] involving a claim of evident partiality by the chief arbitrator, RDC Golf of Florida I, Inc., et al. v. George P. Apostolicas, 2006 Fla. App. LEXIS 3696 [Fla. 5th DCA 2006], gives mediators some insight into the objective standard built into Florida Rules for Certified and Court-Appointed Mediators, Rule 10.330, Impartiality:

(a) Generally. A mediator shall maintain impartiality throughout the mediation process. Impartiality means freedom from favoritism or bias in word, action, or appearance, and includes a commitment to assist all parties, as opposed to any one individual.

(b) Withdrawal for Partiality. A mediator shall withdraw from mediation if the mediator is no longer impartial. [The objective standard with emphasis added.]

and the connection to

Rule 10.340, 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.

(b) Burden of Disclosure. The burden of disclosure of any potential conflict of interest rests on the mediator. Disclosure shall be made as soon as practical after the mediator becomes aware of the interest or relationship giving rise to the potential conflict of interest.

(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.

The fundamental question is would a reasonable person conclude that the undisclosed circumstances would tend to bias the judgment [substitute “conduct”] of a neutral arbitrator [substitute “mediator”].

Since impartiality is the number one grievance filed against Florida mediators, this case gives us something to think about – don’t you think?

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