Ed Ahrens, Jr., Esq. writes monthly thought provoking Editorials on mediation. These views are Ed's and do not necessarily reflect those of Florida Mediation Group.

No, it is not a breach of ethics, by mediator, counselor or adjuster, to discuss an upcoming mediation, even in the absence of the other party.

Mediators should not be confused with judges and arbitrators whose task is to ultimately render a decision. The danger of undue influence on decision makers is obvious, and exparty contacts with either therefore can constitute serious ethical violations.

Mediators cannot and are not permitted by the rules to make decisions, nor can they offer legal advice. So, the advantage gained by engaging in a premediation conference is limited to a sharing of factual information and conveying legal conclusions that most often, the mediator knows, will be refuted by the other side.

A brief discussion, before mediation, of the facts of a case can be helpful to a better understanding by the mediator of the nature of the dispute. This may serve to shorten the "educational" process normally required to bring the mediator up to speed.

The same thing can be accomplished, of course, by submitting a written summary, confidential if desired, for review prior to the mediation. Such summaries can be a Godsend for the mediator in complex disputes. Attorneys work cases for years, then expect the mediator to comprehend what's involved in the space of a five or ten minute opening statement. We're not stupid (most of the time, anyway), but I am often bewildered by an attorney's inability to understand the mediator's inability to instantly grasp what is going on in a complex case.

On rare occasions, an attorney will contact me to inform me of a behavioral problem or troublesome personal history of his own client, thus preparing me in advance for possible trouble at mediation. And, yes, in the opinion of most experts, the statutory confidentiality in court ordered mediations covers such discussions. (There is an open question in the case of voluntary mediations, since the parties have not yet had the opportunity to sign a confidentiality agreement, and retroactive application of such an agreement probably would be debated.)

All this said, it is important to remember that premediation discussions do not take the place of opening statements by counsel at the commencement of the mediation proceeding. The attorney may have to repeat much of what he or she previously has shared with the mediator. A major feature of mediation is that it offers an opportunity for each participant to gauge the demeanor of other participants. Opening statements are as much for the benefit of the opposing side(s) as for the mediator.

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