As a certified mediator in the General District Court for the Commonwealth of Virginia, I am continually faced with ethical issues and questions regarding professional responsibility to the parties of a potential agreement.
Recently, I was presented with a landlord-tenant case–the plaintiff a lawyer and the defendant clearly less savvy. Both are male and of the same ethnicity. The rent is $1600 per month with a $200 late fee. The defendant is $5400 behind on the rent. During the screening process, the plaintiff informed me that he was going to make this easy on me and proceeded to produce a thumb drive containing his version of an agreement. He said, “all you have to do is copy and paste the agreement onto your letterhead and we are done.” This raised ethical red flag number one. Why do these parties need mediation? What can mediation do that they have not already done themselves? Would it be ethical to truncate the mediation process and just copy and paste? I decided it was not and proceeded with the orientation and the signing of the agreement to mediate.
As we navigated our way through the mediation process, the defendant agreed that he owed the $5400 and would accept the payment schedule proposed by the plaintiff. However, he did not agree with the $200 late fee per month moving forward. The plaintiff was treating the back rent as an account. The tenant would be charged the full late fee every month, even if the rent was paid on time, because the tenant’s “account” was not current. Therefore, if the tenant paid the rent on time for the next 12 months he would have paid $2400 in late fees and not one penny toward the principal. As mediators, we are taught to check to determine how the proposed agreement interfaces with reality. In this case, if the defendant went to court and judgment was entered against him in the amount of $5400 with 6% interest, in 12 months he would owe $324. The proposed agreement would cost the defendant 8 times more than a court action, raising ethical flag number two the classic “manifest injustice.”
In this particular case, the mediation process seemed to be doing something “to” the parties rather than “for” them. Moreover, the amount of the late fee appeared excessive. Although the Virginia Residential Landlord Tenant Act does not specify the amount of allowable late fees, the judges in each jurisdiction determine a percentage that is “reasonable.” In this jurisdiction, the maximum allowable late fee is typically 10%. Anything exceeding this amount is deemed “excessive” and punitive in nature. In this case the plaintiff charged a $200 late fee on a $1600/month rent which is 12.5%.
Consequently, based on the two ethical red flags and the unwillingness of the defendant to agree to the $200 late fee/month, I stopped the mediation. Immediately the plaintiff (lawyer) threatened the defendant by stating that he was going to be “evicted from the property and it was my (mediator’s) fault.” This statement confirmed my belief that the landlord was trying to coerce the tenant into signing the agreement, which raised ethical issue number three. Any illusion that the parties had free will to choose had been removed.
At this point, I notified the mediation administrator that I had ceased the mediation process due to several ethical concerns. The administrator could send them back to court and let the judge hear the case or have another mediator work with them. She chose the latter and after 45 minutes, the “copy and paste” agreement was signed. I was told that “if both parties agree and understand, we have done our job”. In this case, agreement is not enough. A mediator should be more than a clerk for the plaintiff.
Isn’t It Ironic as a mediation mentor in the Commonwealth of Virginia, we are required to complete a mentee evaluation that asks: “during the co-mediation did the mentee assist in developing an agreement that is balanced, fair, realistic, understood and not coerced.” This description defines the standard and the mediator’s professional responsibilities in the development of an agreement. However, in this case, the term “understood” trumped all of the others. None of the other terms were applied, simply because “they agreed”. Why use criteria to determine if you are professionally fit to be a certified mediator only to ignore that criteria when it really counts? I can feel the jagged little pill of irony lodged in my throat. Paging Dr Alanis Morissette!
thesmartnegotiator 