Florida mediator Robert A. Cole and civil trial lawyer Rutledge R. Liles will use a series of hypothetical ethical dilemmas arising during the mediation of a "typical" personal injury case to explore what the law says, what guidelines advise and how to apply these standards to practice during mediation. For the fact scenario, please visit http://www.uww-adr.com/?p=6166.

1. Upchurch Watson White & Max
Mediation Group
and the University of Florida
Levin College of Law
Institute for Dispute Resolution
are proud to cosponsor today’s Webinar:
The Right Way to Do
the Right Thing

2. Our moderator,
Sandy Upchurch
Mediation Counsel
Upchurch Watson
White & Max
supchurch@
uww-adr.com
uww-adr.com
Our presenter,
Robert A. Cole
Shareholder
Upchurch Watson
White & Max
rcole@
uww-adr.com
uww-adr.com
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Our guest,
Rutledge R. Liles
Managing partner
Liles, Gavin &
George, P.A.
rliles@
lilesgavin.com
www.lilesgavin.com

3. The Right Way to Do
the Right Thing
Ethical Dilemmas In Mediation
Slides based on a presentation by Lawrence M. Watson;
Fact scenario by Lawrence M. Watson
(http://bit.ly/fact_scenario)

4. Ethical Standards - References
• ABA Model Rules of Professional Conduct
• ABA/SOL – Guidelines for Ethical Settlement
Negotiations
• www.abanet.org/litigation/ethics/
settlementnegotiations
• Fla. Rules For Certified & Court Appointed
Mediators
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5. The Case:
Peter Polyps v.
Vibra-Glow
Fertilizers, Inc.
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6. Peter Polyps v. Vibra-Glow Fertilizers, Inc.
• Peter Polyps – Plaintiff
• Melody Maters – Plaintiff’s attorney
• Vibra-Glow Fertilizers, Inc. – Defendant
• Bluesuit, Whiteshurtz & Tassels – Vibra-Glow
corporate counsel
• Slippery Mutual Insurance Co. – Vibra-Glow’s insurer
• Bill Billum – insurance-appointed defense counsel for
Vibra-Glow
• Roy Reconcile – case mediator 6

7. Accepting the Engagement
Conflicts of Interest –Mediator
Roy Reconcile Mediation, Inc.
• Compromised Impartiality?
• Non Waivable
• Conflict?
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8. Accepting the Engagement
Conflicts of Interest -Mediator
• FRCM 10.340 (a) Mediator shall not mediate a
matter that presents a clear or undisclosed conflict
. . .Conflict arises when any relationship . . .
compromises or appears to compromise
impartiality
• FRCM 10.340(c) After disclosure, a mediator may
serve if all parties agree
• FRCM 10.340 (b) Burden of disclosure…on
mediator (ASAP)
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9. Accepting the Engagement
Conflicts of Interest -Mediator
• FRCM 10.340 (a) Mediator shall not mediate a
matter that presents a clear or undisclosed conflict
. . .
• FRCM 10.340(c) . . . if a conflict clearly impairs . . .
impartiality the mediator shall withdraw
regardless of . . . agreement of parties.
• COMMENT - circumstances . . . cannot be
reasonably regarded as allowing impartiality 9

10. Accepting the Engagement
Conflicts of Interest -Mediator
Non-Waivable Conflict?
• FRCM 10.310 – Self Determination. Decisions to
be made by parties.
• Comment: Critical right to self determination . . .
all phases of mediation.
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11. Statements About Settlement
Authority – The Lawyers
• Model Rule 1.2(d) – unethical to assist client in
fraudulent act
• Model Rule 3.3(a) – lawyer must disclose
material facts to a tribunal
• Model Rule 4.1(a) - unethical to make false
statement of fact to a third person
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12. Statements About Settlement Authority
– The Lawyers
• Model Rules 4.1(b) – lawyer must not fail to disclose material fact to
third parties (to prevent fraud etc.) unless such disclosure would
violate the lawyer’s “confidentiality obligation”.
• Model Rules 1.6 – “Confidentiality obligation” covers everything
client discloses to lawyer unless disclosure necessary to prevent
“death or substantial bodily harm”.
• Guidelines for Ethical Settlement Negotiations, 3.3.1
A lawyer must comply with the rules of professional conduct …during
the course of settlement negotiations . . . and may not …counsel or
assist the client in conduct violating … fiduciary duty owed to others. 12

13. Statements About Settlement Authority
– The Lawyers
• Model Rule 4.4 – A lawyer shall not engage in
bad faith use of the litigation process.
• Guidelines for Ethical Settlement Negotiations
4.3.1 – An attorney may not employ the
settlement process in bad faith.
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14. Statements About Settlement Authority
– The Mediator
• FRCM 10.360 – Confidentiality:
(a) Scope. A mediator shall maintain
confidentiality of all information revealed during
mediation except where disclosure is required by
law.
• (b) Caucus. Information obtained during caucus
may not be revealed by the mediator to any other
mediation participant without the consent of the
disclosing party. 14

15. Statements About Settlement Authority
– The Mediator
• FRCM 10.400 - Mediator's Responsibility to the Mediation
Process - A mediator is responsible for safeguarding the
mediation process. [Mediation] benefits . . . are best
achieved if the mediation is conducted in an informed,
balanced . . . fashion.
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16. Statements About Insurance Coverage –
The Lawyers
• Hard cheese, Peter – looks like Melody missed it!
• Is insurance coverage a “material fact” requiring Model
Rule 4.1(b) disclosure?
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17. Statements About Insurance Coverage –
The Mediator
• FRCM 10.360 – Confidentiality:
(a) Scope. A mediator shall maintain confidentiality
of all information revealed during mediation except
where disclosure is required by law.
• (b) Caucus. Information obtained during caucus
may not be revealed by the mediator to any other
mediation participant without the consent of the
disclosing party. 17

18. “Substantive Facts” – The Lawyers
• Model Rule 4.1 …a lawyer shall not…
(a) make a false statement of material fact…
(b) fail to disclose a material fact (if) necessary to avoid .
. . fraud (subject to Rule 1.6 Confidentiality)
• COMMENT: Lawyer required to be truthful
when dealing with others on client’s behalf;
misrepresentations can occur by partially true
but misleading statements or omissions
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19. “Substantive Facts” – The Lawyers
• Model Rule 1.6 – (Everything is confidential, but. . .) a
lawyer may reveal confidential information (including any
misrepresentations by the client) to the extent the lawyer
believes it necessary to prevent “reasonably certain death
or substantial bodily harm”
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20. “Substantive Facts” – The Lawyers
• Model Rule 8.4(c) – A lawyer is prohibited from engaging
in conduct involving “dishonesty, fraud, deceit or
misrepresentation"
• Model Rule 3.4(a) – A lawyer shall not unlawfully . . .
conceal . . . material having . . . evidentiary value
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21. “Substantive Facts” – The Lawyers
Guidelines for Settlement Negotiations
4.1.1. – In the course of negotiating…a settlement,
a lawyer may not knowingly make a false
statement of material fact to a third person.
4.1.2 - In the course of negotiating . . .a
settlement, a lawyer must disclose a material fact
to a third person when … necessary to avoid …
fraudulent act by a client, unless disclosure is
prohibited by the ethical duty of confidentiality. 21

22. “Substantive Facts” – The Mediator
FRCM 10.360 – Confidentiality:
• (a) Scope. A mediator shall maintain
confidentiality of all information revealed
during mediation except where disclosure is
required by law.
• (b) Caucus. Information obtained during caucus
may not be revealed by the mediator to any
other mediation participant without the
consent of the disclosing party. 22

23. “Substantive Facts” – The Mediator
• FRCM 10.310. Self-Determination.
(c) Misrepresentation Prohibited. A mediator shall not
intentionally or knowingly misrepresent any material
fact or circumstance in the course of conducting a
mediation.
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24. “Substantive Facts” – The Mediator
• FRCM 10.310. Self-Determination.
(a) Decision-making. Decisions made during a mediation are
to be made by the parties. . . A mediator is responsible for
assisting the parties in reaching informed . . .decisions while
protecting their right of self-determination.
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25. “Substantive Facts” – The Mediator
• FRCM 10.420 Conduct of Mediation
(b) Adjournment or Termination. A Mediator shall …
(4) terminate a mediation entailing fraud…or unconscionability
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26. “Negotiating Positions” – The Lawyers
Model Rule 4.1 – A Lawyer … shall not:
• (a) make a false statement of material fact
• (b) fail to disclose a material fact when necessary to avoid
…fraud
BUT:
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27. “Negotiating Positions” – The Lawyers
• Model Rule 4.1 Comment: Under generally accepted
conventions in negotiation, certain types of statements
ordinarily are not taken as statements of fact. Estimates or
price or value . . .and a party’s intentions as to an
acceptable settlement of a claim are in this category . . .
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28. “Negotiating Positions” – The Mediator
• FRCM 10.310(c) Misrepresentation Prohibited. A mediator
shall not intentionally or knowingly misrepresent any
material fact or circumstance in the course of conducting a
mediation.
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29. “Negotiating Positions” – The Mediator
• QUERY: Does a misstated state of mind regarding
“settlement evaluation” or “maximum authority” become
a “statement of fact” when the mediator is asked to pass
the message?
• QUERY: Is the Mediator misrepresenting a “circumstance,”
if not a “material fact,” when delivering the message?
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30. Legal Advice, Legal Information,
and Malpractice – The Mediator
• FRCM 10.220. Mediator's Role:
The role of the mediator is to reduce obstacles to
communication, assist in the identification of issues and
exploration of alternatives, and otherwise facilitate voluntary
agreements resolving the dispute. The ultimate decision-making
authority, however, rests solely with the parties.
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31. Legal Advice, Legal Information,
and Malpractice – The Mediator
• FRCM 10.310. Self-Determination.
(a) Decision-making. Decisions made during a mediation
are to be made by the parties. A mediator shall not make
substantive decisions for any party. A mediator is
responsible for assisting the parties in reaching informed
and voluntary decisions while protecting their right of self-determination.
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32. Legal Advice, Legal Information, and
Malpractice – The Mediator
• FRCM 10.300. Mediator's Responsibility to the Parties
[A] mediator's responsibility to the parties includes honoring
their right of self-determination; acting with impartiality; and
avoiding coercion, improper influence…
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33. Legal Advice, Legal Information, and
Malpractice – The Mediator
• FRCM 10.310 Self Determination
(c) Misrepresentation Prohibited. A mediator shall not
intentionally or knowingly misrepresent any material fact or
circumstance in the course of conducting a mediation.
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34. Legal Advice, Legal Information, and
Malpractice – The Mediator
• FRCM 10.370(a) Providing Information. Consistent
with… impartiality and …self-determination, a mediator
may provide information …qualified by training or
experience to provide.
• FRCM 10.370(c) Providing Opinions. Consistent with…
impartiality and …self-determination, a mediator may
point out possible outcomes …discuss merits of claim or
defense…A mediator shall not…(opine) how the court
will rule 34

35. Legal Advice, Legal Information,
and Malpractice – The Mediator
• FRCM 10.370 COMMENT
The primary role of the mediator is to facilitate …opportunity
to resolve … dispute by agreement if (parties) choose to do
so. A mediator may assist in that endeavor by providing
relevant information. . . A mediator may also raise issues and
discuss strengths and weaknesses of positions underlying the
dispute.
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36. Legal Advice, Legal Information,
and Malpractice – The Mediator
• Rule 10.310 COMMENT
Mediation styles and techniques … may vary …a line is crossed
and ethical standards are violated when any conduct of the
mediator serves to compromise the parties’ basic right to agree
or not to agree.
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37. Settlements – The Mediator
• FRCM 10.420 Conduct of Mediation
(b) Adjournment or Termination. A Mediator shall
(3) adjourn or terminate if mediator believes … any party is
unable … to participate meaningfully in process
(4) terminate a mediation entailing … absence of bargaining
ability
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38. Settlements – The Lawyers
• Model Rule 5.6(b);
Lawyers are expressly prohibited from offering or making a
settlement agreement that includes a restriction on a lawyer’s
right to practice law.
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39. Settlements – The Lawyers
• Guidelines to Ethical Settlement Negotiations, 4.2.1
A lawyer may not propose, negotiate, or agree upon a provision
of a settlement agreement that precludes one party’s lawyer
from representing clients in future litigation against another
party.
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40. Settlements – The Lawyers
• Legal Restrictions On Confidential Settlement Agreements
• Issues of “Public Policy”
• Public health and well being
• Safety
• Product Defect Cases
• Medical Malpractice Cases
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41. The Right Way to do the Right Thing
Conclusion
• Ask the right questions
• Triangulate your ethical position
• Steer clear of trouble; avoid the shoals with creative
alternative pathways
• What would Mom want you to do . . .?
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42. “The Right
Way to Do the
Right Thing”
Florida Bar
Course #
1406439N
1.5 CLE Credits
General/Ethics
Please contact Bob at
rcole@uww-adr.com with
questions or comments
regarding content.
Upchurch Watson White & Max Mediation Group
uww-adr.com
Please email cklasne@uww-adr.com with questions about course number, Webinar recording, etc.
Daytona Beach  Maitland/Orlando  Jacksonville  Miami  Fort Lauderdale/Plantation  West Palm Beach
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