Ethical behavior is nothing new and does not have to be reinvented as it is always “in style.” However, in the olden days, when I was practicing law for the first time and even later when I was on the bench, we took ethical behavior for granted. We never really talked about it. You were supposed to be ethical in the practice of law and so you were—or at least you pretended to be. Today there is more of a focus on examining attorney behavior during discovery, in the courtroom and at mediation analyzing whether behavior, while entirely legal, can still present ethical problems.

So I decided to look at mediation and some ethical dilemmas that may face litigants, attorneys and mediators during the settlement process. Given confidentiality and privacy constraints, I am going to present some real scenarios with enough facts changed (as they say on TV) “to protect the innocent,” but still highlight the ethical conundrum.