MAY A MEDIATOR CHANGE THE FEE ARRANGEMENT AT THE SESSION?

Procedural posture and result

Advisory-opinion request concerning changing payment terms after parties have relied on the disclosed fee arrangement. RESULT: The committee concluded that changes require informed and voluntary party agreement with adequate advance notice. A mediator may not unilaterally alter shares or condition performance on a new payment obligation that was not properly disclosed and accepted.

What happened and what the authority decided

A mediator proposed changing previously disclosed fee allocations when the parties and lawyers arrived for mediation, including requiring one side to cover another side’s unpaid share.

The committee concluded that changes require informed and voluntary party agreement with adequate advance notice. A mediator may not unilaterally alter shares or condition performance on a new payment obligation that was not properly disclosed and accepted.

What this tells the mediator

Last-minute fee demands can create coercion, unequal bargaining power, apparent favoritism, and loss of trust before mediation begins.

Practical guidance

• Provide complete written fee terms before the mediation date.
• Address responsibility for unpaid shares in the original engagement agreement.
• Give adequate advance notice of any proposed change.
• Obtain informed agreement from all affected parties.
• Reschedule or withdraw rather than pressure participants into new terms at the door.