Question: If a certified mediator is providing mediation services under a federal or private agency program, does the mediator need to inform the parties to the mediation on the Agreement to Mediate Consent Form that: 1) the mediator does not give legal advice, 2) any mediated agreement will affect the legal rights of the parties, 3) each party to the mediation has the opportunity to consult with independent legal counsel at any time and is encouraged to do so, and 4) each party to the mediation should have any draft agreement reviewed by independent counsel prior to signing the agreement or should waive the opportunity to do so?
Answer: "The Agreement to Mediate must contain specific language as to the party's rights. If the mediator did not inform the parties to the mediation of their rights as set forth in the question, the mediator could be sited for misconduct.
Under § 8.01-576.12(3), misconduct by a mediator shall be grounds for the court to vacate the mediated agreement reached in a dispute resolution proceeding. A motion to vacate under this section can be brought within two years after the agreement is entered into."
Response submitted by David W. Boling,
Court-Certified Mediator from Virginia Beach
All certified mediators must adhere to the Standards of Ethics and Professional Responsibility for Certified Mediators in all cases, court-referred and privately referred. Section D.2.a of the Standards states that prior to commencement of the mediation, the mediator shall inform the parties in writing of the following: 1) the mediator does not provide legal advice; 2) any mediated agreement will affect the legal rights of the parties; 3) each party to the mediation has the opportunity to consult with independent legal counsel at any time and is encouraged to do so; and 4) each party to the mediation should have any draft agreement reviewed by independent counsel prior to signing the agreement or should waive his opportunity to do so. In addition, Section 8.01-576.12 of the Code of Virginia describes the ability of the court to vacate a mediated agreement if there is mediator misconduct. "Misconduct" includes the failure of the neutral to inform the parties in writing at the commencement of the mediation process of the four points listed above, which are in the Standards. Thus, certified mediators have both an ethical and statutory responsibility to inform parties of these four important points at the beginning of any mediation.
Can a law firm that hires a lawyer, who previously attempted to mediate resolution of a dispute, later represent the defendant in that dispute?
You are invited to respond. Please send your response to: Readers' Response, c/o Resolutions, Office of the Executive Secretary, Department of Dispute Resolution Services, 100 North Ninth Street, Richmond, Virginia 23219.
This page last modified: March 23, 2000