When a Mediator Knows Something the Parties Do Not, What’s the Obligation?
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Doctors Jones and Green are engaged in a bitter dispute over the assets of their medical partnership. On the first day of a mediation between the parties, the mediator learns from his own research that Dr. Green’s attorney has grossly overestimated the value of Dr. Green’s future income from a medical device Dr. Green recently patented. The mediator, who is also a patent attorney, knows that US Patents are presumed to be valid, but he also knows that such presumptions are rebuttable. In this case, the mediator believes rudimentary research would show that the validity of the patent is questionable. The mediator does not know if Dr. Green or Dr. Jones is aware of this.
What are the mediator’s obligations in connection with the issue of the patent’s validity?
First, let’s look at disclosure. Is the mediator obligated to inform Dr. Green, whose attorney made the miscalculation? Is the mediator obligated to inform Dr. Jones, whose estimate of the practice’s assets presumably includes the patent income? Both doctors?
What about influencing the parties or the process without disclosing the information about the patent validity? Should the mediator try to convince Dr. Green to reduce his settlement offer, without specific reference to the patent issue? If he does not disclose, should the mediator proceed to allow the parties to negotiate a settlement and do nothing with this information?
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