In the context of business mediation, I am often asked, “Who do you think are your clients?” This question cuts to the heart of competing and ethically challenging interests in a business mediation.
Lawyers in general face the potential conflict between their own monetary interests and their clients’ interests in having their problem fixed and settled as quickly and inexpensively as possible. They want repeat business from their clients, so they are sure to do what it takes to keep them happy. Mediation lawyers question whether arbitrators and mediators similarly feel beholden to those lawyers who, hopefully, will hire them again and again for business dispute resolution.
It is easy to argue that mediators would take advantage of their neutral role to use mediation techniques to secure future referrals from the mediation lawyers. Many arbitrators and mediators themselves, not just the mediation lawyers, thus contend that the mediators’ “clients” really are the mediation lawyers, as distinct from the parties, who are the mediation lawyers’ clients.
I have to say that to some extent, I agree that the attorneys are my “clients” because I do want repeat business from happy “clients”. However, I also remember that the mediation lawyers come to me because they trust that I will be fair and impartial with both sides.
So, as a colleague recently put it, the mediator’s “client” is in fact the mediation process itself. Arbitrators and mediators should be trusted to ensure the fairness of the process so the parties can achieve a business dispute resolution that they control themselves.