Conflicts of interest in the age of Twitter and Facebook: neutrals must find right balance

finding balance in an age of Twitter and FacebookFacebook, Twitter, LinkedIn - if you are active on any of those sites or on the many others like them – then you no doubt have frequent opportunities to connect.

But what happens for ADR professionals – mediators, arbitrators, and others – when clients are the ones who invite you to connect, follow you, or seek to “friend” you?  In an increasingly plugged-in (and wireless) world, when many of us do our networking or marketing online, the risks of this happening are real: the ABA Journal reports that the North Carolina Judicial Standards Commission reprimanded a judge who friended on Facebook a lawyer in a pending case and discussed the case by posting messages to the lawyer through the social networking site.

Various codes of conduct for mediators, such as ABA and ACR’s Model Standards of Conduct for Mediators (PDF) (which, alas, are aspirational only with no regulatory teeth to back them), exhort mediators to identify and disclose all actual or potential conflicts of interest, including current or past personal or professional relationships with any of the parties, and caution mediators to prevent harm to the integrity of the process and avoid establishing a relationship with any of the participants once the mediation has ended.  These standards, as my favorite ADR iconoclast, scholar Michael Moffitt, has pointed out before, offer little meaningful guidance and don’t tell me whether following someone on Twitter counts as a “relationship”, professional or otherwise. I can however imagine how one side to a dispute might feel were they to see that I’d connected on LinkedIn with their counterpart two weeks after the mediation had concluded.

So what’s a mediator to do in the digital age? What policies do you have in place for dealing with the day a former client seeks to friend you on Facebook ?

Photo credit: Kostya Kisleyko

6 responses to “Conflicts of interest in the age of Twitter and Facebook: neutrals must find right balance

  1. As a mediator, I see absolutely no problem with this. What is the difference between a lawyer or firm being in my Blackberry address book and my LinkedIn page? I guess, theoretically, there are enough lawyers in the metro Atlanta area so that I can mediate for each once and only once and still make a decent living. But I see many of them more than once. It’s a connection. Plain and simple.

    I treat Facebook differently. For me, it is exclusively my personal relationships – family, friends, neighbors. There are a select few lawyers, but they are people with whom I have a relationship outside the law. I have only mediated for one of these lawyers and we disclosed to the other side that we had been associates together 8 years ago and maintain friendly contact and the occasional lunch. They had no problem with it.

    The two mental giants involved in the reprimand are another story altogether…..

  2. As an Organizational Ombuds, I frequently mediate conflicts. To preserve the appearance of neutrality, I shun any activity that would create the impression of friendship with individuals in the population I serve. Accordingly, I have turned down many social network requests over the years.

  3. Chris and Tom – glad for your comments. I think with lawyers connecting with attorneys who mediate, it can be different. The bar in your particular state or geographic practice area can be so small and intimately connected anyway. It is a tough balancing act. I would still be concerned about what the other side’s client might think if they saw that I had “followed” their opponent’s lawyer. Like you, I use Facebook only for personal connections not for business, at least at present. Perhaps the better part of valor is not discretion but disclosure. Tom, like you, for now, I’m erring on the side of caution. These are definitely hard calls sometimes to make.

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  5. These are great questions and I wish there was more discussion on this topic as it certainly is not going away. I personally have a fun facebook page for friends and family and I have a second facebook page that is for professional contacts only. The Florida AG’s office just issued an opinion regarding facebook and governmental entities at http://www.myfloridalegal.com/ago.nsf/Opinions/25F14F90483F3901852575A2004E46CB – I imagine there is much more to come.

  6. Sanda, thanks for the link to the opinion from the Florida AG’s office. Like you, I’d love to hear more discussion about this one – these kinds of questions are certainly going to crop up with increasing frequency.

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