Malicious Mediation: Will Appellate Courts Protect Mediators hiding Abusive Tactics in Mediation?
by Wendy Meigs, RPh, MBA
[Reprint from July 2019 with additions (full story)]
Mediation numbers continue to escalate as judges push individuals to negotiate outside of court especially with limited resources as seen in Harris County. But is mediation the same as court? Some strive to promote that fallacy.
Victims of divorce court tell a different story. 70 yo Gladys S. never wanted to experience an abusive mediation. Missing information and extreme pressuring forced Gladys to settle for far less. As the main earner and spouse after 50 years of marriage to an adulterous husband, Gladys felt betrayed from the abuse at home, an abuse sustained through mediation. Was allowing the manipulation of an abused woman justified? Who really is to blame for the deceptions at mediation to this woman, a trusting, misinformed, and abused woman? And is this the justice the common man believes exists in mediation versus the courtroom?
By definition: “Mediation is a private process in which an impartial person encourages and facilitates communications between parties to a conflict and strives to promote reconciliation, settlement, or understanding.” This private process called “confidentiality” contributes to abuses and manipulation of unaware individuals contrary to a courtroom where the exposure of standards of conduct and ethics in court limit outright abuses.
Becky R. argued that forced into mediation before understanding all facts led her to settle for two million dollars less on a jointly owned building. Had all facts been present, Becky would never have agreed. Confidentiality and mediation terms prevent her from a further fight whilst an abusive process goes unchecked.
Mediators hold positions of power during mediation as the overseers and creators of a fair and impartial mediation. This power allows the misdirection of participants if necessary for the mediator to achieve his goals as participants trust in a mediator’s impartiality and fair mediation. What level of misdirection is allowed?
Several organizations and credentialing associations attempt to restrain actions within mediation and mediators by creating boundaries through the promulgation of Rules…Rules not always adhered to by the mediators. Organizations such as the Texas Mediation Credentialing Association promote a series of rules they expect those credentialed under them to follow. But what if a participant has proof that their mediator failed to follow those rules promoted by the mediator as credentialed by that association? Will the association reprimand or turn a blind eye? Who is the mediator responsible to when he manipulates and corrupts a mediation or does he use confidentiality in mediation created to protect clients as a tool to protect the mediator? Will judges protect their own as most mediators practice law and a "fraternity" of lawyers can exercise the opportunity to protect each other over the rights of the public? If judges protect, will the appellate courts recognize the abuse to the public, demand mediators face a district court jury, refuse process to the Supreme Court, and stand before those they swear to represent? Or will appellate court lawyers/judges free their own comrades against public justice and for abuse?
Although mediators must follow ethics guidelines written by the Supreme Court of Texas, many do not as reported by several divorced individuals, some feeling abused with successful mediations. Victims try to fight back against the abuse, and mediators and lawyers throw confidentiality back as if claims of confidentiality allow any conduct by the mediator and lawyer to go unaddressed, free reign to do as they want. According to victims, apparently sovereignty to abuse exists. Will judges continue to turn a blind eye?
How tight is that reign? Victims are beginning to fight back. Lawsuit numbers increase. The process is slow and cronyism and corruption of judges block justifiable claims against mediators; however, growing discontent in society swells as individuals find similarities between the barbaric methods of the medieval ages to the current mediation abuse of the weak by mediation facilitators under the guise of confidentiality. Thus, the current process pairs Barbarism and Mediation in methods. Is this a civilized society or the deterioration to feudalism in the legal system?
When should mediation not be confidential? Confidentiality should fail with every claim of abusive tactics and victim manipulation from the hands of mediators and lawyers, by those promoted to be impartial yet create an environment of abuse and fear. The mediation society needs to take a stance against abuses, honor that no one is above the law, and create boundaries as in courtrooms to enhance justice rather than allow an environment where the sole objective of mediation lies in clamoring for a participant’s signature at any cost to prove success to the judge/court and increase mediator income.
Money corrupts and money lies at the core of mediation abuse. Add the desire for more referrals from lawyers, and what prevents a mediator from playing to that lawyer’s agenda in order to receive more mediation referrals and hence more money? Why else would a mediator and lawyer allow the abuse of a participant? Whose agenda and purpose is mediation? Mediator? Lawyer? Participant?
Serious inquiries into mediation abuses must be addressed. Mediators can be sued and should be sued to ensure the protections of the participants, to promote responsibility and accountability of mediators, and to ensure that Barbarism and Mediation are not synonyms.
Take a stand for victims and against the protection of mediators. Take a stand for the people. Prosecute the Corrupt.
1. Supreme Court of Texas. Docket: 05-9107, Approval of Ethical Guidelines for Mediators. http://www.txcourts.gov/All_Archived_Documents/SupremeCourt/AdministrativeOrders/miscdocket/05/05910700.pdf
2. Texas Mediator Credentialing Association. Standards & Ethics. https://www.txmca.org/index.php?page=10
3. Model Standards of Conduct. ABA & AAA. https://www.mediate.com/articles/model_standards_of_conflict.cfm
4. GoFundMe: Stop Mediation Abuse: Help Force Accountability. https://www.gofundme.com/f/stop-mediation-abuse-help-force-accountability
5. Appellate Court Case:
6. Billboard to Protect the Public Against Mediation Abuse:
Wendy Meigs founded SMA Education and Support in immediate response to an abusive mediation. Having experienced normal mediations, Meigs realized the vulnerability of the already vulnerable under the guise of impartiality and the abusive potential of blanket confidentiality. SMA, Stop Mediation Abuse, assists and educates on the potential abuses of mediation. SMANow.org (as the website develops) offers individuals the opportunity to voice their abuse from mediation with documentation and lists of abusers. SMA assumes no responsibility for stories and names listed on the website by individuals needing to vent in a private setting.