PARTY COMPETENCY IN MEDIATION: AN ETHICAL BRAIN TEASER

By Paul Fisher, Esq.,^* and Neil Solarz, Esq.**

This article is a two-part brain teaser regarding a party’s competency in mediation. Part 1 describes a mediation session that involves ethical issues faced by both the attorneys and the mediator. Part 2 addresses those ethical issues. The authors recommend analyzing the questions at the end of Part 1 before proceeding to Part 2.

I. PART 1

Don is in his early nineties and was predeceased by his wife three years ago. Don’s physical and mental conditions have become frail. Don’s daughter, Hilline, and son, Tim, have been in a struggle for control over Don’s wealth. Through their attorneys, each has accused the other of adding himself/herself as a signer on some of Don’s bank accounts, removing large sums of cash from these accounts, and turning Don against the other sibling. Don has maintained contact with the attorney who prepared the family estate plan many years ago. Don’s accountant brought the information about the alleged improprieties with respect to the bank accounts to the estate-planning attorney’s attention. The attorney then brought suit on behalf of Don against Hilline and Tim. The suit included a claim for elder financial abuse and sought the return of all money Hilline and Tim had taken and to eliminate their exertion of undue influence over Don. After almost a year of litigation, the parties agreed to mediate their dispute.