MEDIATION TIPS AND ARBITRATION BITS

By Alan R. Berkowitz

Alan R. Berkowitz is a mediator with Judicate West, specializing in individual and class action cases. He has resolved hundreds of cases involving all types of employment matters, including wage and hour class actions and PAGA claims, many of which resulted in seven-to-eight-figure settlements. Before retiring from the practice of law to become a full-time mediator, he was a partner with Bingham McCutchen, managing partner with Schachter Kristoff Orenstein and Berkowitz, and Regional Attorney at the NLRB, Region 32. He has tried over 50 cases in state and federal courts and administrative agencies on behalf of both defendants and plaintiffs.

SOME ETHICAL CONSIDERATIONS IN MEDIATION

Do current ethical rules require attorneys to be truthful in mediation? Rule 3.3 of the California Rules of Professional Conduct, "Candor Toward the Tribunal," prohibits lawyers from making a false statement of fact or law to a tribunal. But the term "tribunal" applies only to a court, arbitrator, or other body acting in an adjudicative capacity authorized to make a binding decision on the parties. On its face, rule 3.3 is inapplicable to mediations or to statements made to an opposing party. However, another rule has a much broader scope and does apply to statements made to a mediator and to an adversary.