“What drugs are you on?” Is this a good question for a mediator to ask a party? No. Okay, how about “are you juiced?” No. Okay, how about “have you taken your meds today?” Not much better. Should mediators engage in the practice of asking parties about their medications and is this something to be concerned about?
Actually, yes. According to this article in the National Law Journal entitled “What’s Your Juror Taking.”
As the percentage of Americans taking various medications skyrockets, some jury consultants and lawyers have begun asking potential jurors what kinds of medications they are taking.
They're concerned about potential side effects associated with medications that can affect a person's ability to concentrate, sit for long periods of time and otherwise act as jurors.
At the least, and prior to the parties signing their mediated settlement agreement, should the mediator be asking whether the parties have taken any medication that has interfered with their ability to understand the terms of the agreement and other similar questions? What about the timing of such a question – is the issue better addressed at the beginning of the mediation conference? How about during the mediation conference? How would you frame the question or questions?
There are ethical considerations involved here. For example, Florida Rules for Certified and Court-Appointed Mediators, Rule 10.310(d) Self-Determination, Postponement or Cancellation provides:
If, for any reason, a party is unable to freely exercise self-determination, a mediator shall cancel or postpone a mediation.
Also, Rule 10.420(b)(3) Conduct of Mediation, Adjournment or Termination informs us that:
A mediator shall adjourn or terminate the mediation if the mediator believes the case is unsuitable for mediation or any party is unable or unwilling to participate meaningfully in the process.
We can learn a great deal from reading the article – grab a cup of coffee [just kidding!] and take a look!
To email me, click Perry S. Itkin.
