Lawyer-Mediator's Dilemma to Report Misconduct but Maintain Confidentiality

Mediators operate under various standards and rules that govern the many different mediation programs that now exist, such as the Model Standards for Mediators and the Southern District of New York’s Local Civil Rule 83.12 governing Southern District of New York mediation. When a mediator is a lawyer admitted to practice in the state of New York, the mediator is also subject to the New York Rules of Professional Conduct (NYRPC). Difficulty arises when there is a conflict between the prescriptions set forth in the mediation standards and rules and the NYRPC.

This article addresses a fact pattern raised at a training program for the pro bono panel of mediators serving in the Southern District of New York’s Alternative Dispute Resolution Program. The group considered the situation where a mediator obtains knowledge that one of the parties has knowingly presented false evidence at a mediation and intends to use the same false evidence at trial if the mediation is not successful.¹ The Southern District of New York mediation trainer suggested that the mediator’s duties of confidentiality prevent the mediator from disclosing the use of false evidence to the court. This result is counter-intuitive to lawyers who are subject to a duty of candor under the Rules of Professional Conduct. We concluded, at least in the context of court-annexed mediation, that the mediator’s duty of confidentiality should not trump the lawyer’s duties as an officer of the court.

Confidentiality Rules