Welcome to the MEDIATOR’S ETHICAL DILEMMA.
You are invited to analyze the actions of the mediator in the hypothetical that follows and submit your written response in 1000 words
or less at:
Each entrant will receive a certificate of participation from the ABA ADR Section. Every entry will be read by two members of the ADR Section and
the best two entries will be included in the November E-News published by the
Section. Test your ethical compass and knowledge of the Standard of
Conduct for Mediators. All entries must be submitted prior to the close
of Cyberweek on October 29, 2010.
THE DJANGO REINHARDT WALL STREET JAZZ BAND
CYBER WEEK 2010
MEDIATOR ETHICS DILEMMA
Alice Dillon, John Cashmere, and T J McNeal, Wall Street bankers and bond traders, found themselves unemployed after the economic crash of 2008. Shortly after the crash the three bumped into each other at a bar. Although they had worked for different firms Alice and John knew each other from graduate school and John and TJ had worked on some financial deals together. Over some drinks they discovered they each loved jazz, particularly Django Reinhardt’s style of jazz, had played in combos during college to help pay expenses, and were each unemployed and having trouble finding work. By the end of the evening they had decided to form the Django Reinhardt Wall Street Jazz Band and see if they could make some money until they were able to find full time work. The three practiced, persuaded a couple of Wall Street bars to take a chance on them, and soon had regular gigs. Differences among the band members began to mount, however. John and TJ were happy staying in NY and playing three or four nights a week. Alice, on the other hand, felt tied down by her partners. She had found her calling and wanted the band to increase bookings and go on tour to promote its first CD. Things came to a head when Alice announced to John and TJ that she wanted out of the group and was going to strike out on her own. Efforts to resolve the disagreements among themselves were unsuccessful and the band agreed to try mediation and engaged Fred Bobble, a securities lawyer and mediator, to help them. They agreed to mediate by telephone and online since they preferred not to be in the same room with each other. None of the parties retained a lawyer, based on advice from Fred that it would only increase their expense and his representation that he was pretty knowledgeable about this field of law. Besides, he told them that at any time during the mediation they could decide to consult a lawyer for advice, and they certainly could show any agreement he wrote up for them to any attorneys they wanted before signing it. Fred’s fee arrangement included an hourly fee with a 15% bonus if the parties reached agreement
That night at dinner while talking about his day, Fred mentioned to his wife, a financial analyst for a bank, that he had a new mediation client, a local jazz band named the Django Reinhardt Wall Street Jazz Band, whose members were out of work Wall Street traders. She found that amusing and wished him luck.
Fred started the mediation with a joint conference with all the parties on Skype and asked each of the band members to talk about how they viewed the situation and what their concerns were. A lively exchange ensued with some raised voices. At one point, while Alice was wailing about how she had carried the group all along without any support from the others and was entitled to the lion’s share of the assets, Fred received a text message on his cell phone from TJ that read, “She lies! She’s into drugs and booze and we’ve had to cover her a- - for the past six months. In fact she’s probably high right now. Just look at her.” Fred did not respond to TJ but soon summarized the issues that were on the table and suggested that he have separate e-mail conversations with each of them. The main sticking points seemed to be the value of the good will and assets of the band, which John wanted, and the rights to two songs that TJ and Alice both claimed title to. Not surprisingly the members valued the assets differently. Although they made some progress, they agreed to end the mediation for the day and reconvene the next afternoon.
That night Fred received an e-mail from John, copying TJ, saying that John’s wife was checking her social networking page and a “friend” had just forwarded her an entry from a person named Alice Diehl, with whom she was a “friend,” stating that by tomorrow she hoped to be free of her two boring, dull band partners and then would be free to contract with a cool new band that was going on a 20 city tour starting in October. Fred emailed back asking John what he wanted Fred to do with this and John responded, “use it to pressure her to let us have the band assets and band name at our price or else we’ll tell her ’cool new band’ that she’s a druggy and can’t be trusted.” Fred did not respond. The next morning, he emailed Alice to see if they could talk before the afternoon mediation and she agreed. During the phone conversation Fred asked Alice if she had thought any more about the value of the band assets and name. She replied she hadn’t given it much thought, and asked what he thought fair value was. Fred responded he didn’t really know, but sensed she might be asking too much, and “by the way, John saw your social networking entry last night about your ‘cool new band’.“ Alice replied that she’d been a bit high when she wrote that and it was a mistake. She said maybe it was best to get this finished and she’d agree to their lower price.
All that remained was working out the rights to the two pieces of music. Fred suggested that he get TJ on the line to see if the two of them couldn’t work it out. Alice was agreeable. She told Fred that he might want to suggest to TJ that, if he refused to give her the rights to the music, her social networking page would be a wonderful place to talk about their night together while his wife was visiting her mother last winter. Fred couldn’t reach TJ so he sent him a text, “Give me a call. Want to talk about rights to music. Alice believes you might want to reconsider your position. Fred.” When TJ called, Fred told him that Alice wanted him to convey to TJ, “and I don’t know whether it is true or not,” that she has information your wife would be interested in if you insist on the rights to the two pieces of music. TJ was silent for a minute and then said, ”ok she can have the music.”
When the mediation reconvened by conference call that afternoon Fred announced he thought all the issues had been resolved and summarized what everyone had agreed to. TJ, Alice, and John all agreed there was nothing else and asked Fred to write the Agreement for their signatures. Fred wrote the Agreement and sent it out as an e-mail attachment to the members of the band with a note suggesting they review it, talk with a lawyer if they wanted, and get back with any changes or else send him a signed copy. Three days later, Fred received signed copies from each of the band members and distributed fully executed copies to each of the parties and billed each for their share of the mediation plus the 15% bonus.
Comment on Fred’s performance as a mediator in the context of the Model Standards of Conduct for Mediators.