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Alternatives
CPR INSTITUTE FOR DISPUTE RESOLUTION
DIGEST
n
MEDIATION TRENDS
Mediation appears in the popular
media daily. But what’s going on
usually has little to do with what
mediation really is. Alison E.
Gerencrer of the University of Florida
College of Law explains why this has
occurred, why it may be a problem,
and what can be done. .......... Page 6 5
PRACTICE NOTES
Is your legal work insured? Sure.
Most lawyers carry malpractice these
days. But is your neutral work
insured? Better read that policy
again. South Portland, Maine,
attorney David Plimpton writes
about liability for mediators and
arbitrators, and has suggestions on
dealing with your carrier. .... Page 6 5
VOL. 18, NO. 4 APRIL 2000
WWW.CPRADR.ORG
l
Conhsed by ADR? Lhanging
Conduct Standards Would Help
0
I
BY ALISON E. GERENCSER
C
Cx-nmentator David Strawn has asked,
“Should we have more than one form of
Alternative dispute resolution has been chammediation? One in which adversary process
pioned for years as a preferred alternative to
and principle is applied, with the expectation
litigation. Commentators have praised the
that the mediator will provide
benefits of various ADR methan unenforceable award? Anods including negotiation
other in which all the reasons
among the parties and other
for mediation’shistorical success
forms ofADR involving a third
I
are emphasized. ...” David
party such as early neutral evaluStrawn,
“Does a Mediator Have
ation, arbitration, summary triTRENDS
an
Affirmative
Duty to Assure
als, facilitation and mediation.
That Consent to Settle Is Truly
Despite these distinct
Informed?” Just Resolutions 1
choices, the lines between and
(January 1998).
among various types of ADR
This author believes that Strawn’s quesblur into one choice, mediation. Perhaps
tion is, unfortunately, moot. Several types of
when ADR was first introduced, its myriad
mediation already exist. Many in the mediavarieties were viewed discretely; mediation
tion profession harbor serious reservations
was a single point of light. Now, however,
(continued on page 82)
mediation is as multifaceted as a kaleidoscope.
~
CPR NEWS
The seminar lineup for June’s CPR
Spring Meeting is set, and ADR
2000, CPRs online seminar series,
returns next month focusing on
Page 6 6
technology. ..........................
MEETING SUPPLEMENT
Seven seminars from the CPR Winter
Meeting in New York City are
summarized, including a speech on
ADRs usefulness in public policy
problems by U.S. Interior Department
Secretary Bruce Babbitt. ....... Page 6 7
ADR BRIEFS
Charging that a neutral was biased
against him, a California attorney
asks the state Supreme Court to
reverse sanctions against him in a
case revolving around the nature of
mediation confidentiality. Plus, U.S.
News 8. World Report names the top
U.S. law school ADR program for
2000. ....................................
Page 80
DEPARTMENTS
CPR News ...........................
Page 6 6
ADR Briefs ..........................
Page 80
Cartoon by Cullum .............Page 80
Online Info ....... Pages 85, 8 6 81 88
Index Info ................Pages 8 5 818 7
Liability Pitfalls May Be
Waiting for Lawyer-Neutrals
This article will attempt to focus on the
BY DAVID PLIMPTON
issues most likely to be confronted by the lawAs more lawyers serve as third-party neutrals
yer-neutral. Nonlawyers face many of the
in alternative dispute resolution processessame issues, but also different
whether as the exclusive, a sigones, such as the unauthorized
nificant, or even an occasional
practice of law.
part of their professional pracDifferent ethical stantices -the question of what
PRACTICE
dards may apply depending on
professional liability risks apply
whether the lawyer-neutral is
to such work becomes increasNOTES
serving in an adjudicatory
ingly relevant. Debate and disrole-such as arbitrator, refcussion in this area is rapidly
eree, master, or factfinder-or
evolving and subject to uncerin a nonbinding role, such as a
tainty as more questions and ismediator or early neutral evaluator.
sues are raised, not only as to potential
Because the adjudicatory role has more hismalpractice liability but also as to the closely
tory behind it, there is more guidance in this
related question of applicable ethical standards.
(continued on page 84)
i
Changing Conduct Standards Would Help ADR Conhsion
(continued from front page)
about recognizing the myriad faces of mediation. Nevertheless, the profession needs to
recognize that the morphing of ADR into
mediation is occurring.
This is caused by three parallel developments. First, the word “mediation” is used by
the general public as an all-purpose term for
any type ofADR. Second, mediation was coopted by the legal profession, and third, there
was a proliferation of types of mediation.
Because mediation may now refer to any
form ofADR, standards of professional conduct for mediators should be changed. While
any overarching standards must be general to
accommodate all facets of mediation, states
should develop specific standards for discrete
types of mediation.
In addition, standards that control the
mediation process are needed. Process standards may include (1) identifying and naming the form of mediation being provided;
and (2) ensuring that all parties involved in
the mediation know exactly what type of
mediation will be employed by having all
parties sign an agreement before the mediation. Furthermore, both courts and professions that provide mediators should
promulgate regulations for mediation.
STATUS OF M E D I A T I O N : Themorphing
ofADR into mediation is evident in the general use of the term “mediation”:
In a Seinfeldepisode,Kramer and Elaine
were arguing over a bicycle. Jerry suggested
mediation, and Elaine and Kramer agreed to
“mediate.” Instead ofvisiting a neutral facilitator, Elaine and Kramer visited Newman,
and Newman, acting as an arbitrator, decided
their dispute.
A recent article in Ememagazine stated
that “[a] tough mediator might be able to
force the necessary concessions.” Erne appeared to refer to an arbitrator rather than a
neutral facilitator.
Alison E. Gerencser is a clinical professor, associate
director of the Institute for Dispute Resolution, and
director of Florida’s Agricultural Mediation Sem’ce,
a t the University of Florida College of Law i n
Gainesville, Fla. This artkle i s an update and adaptation of her article ”Alternative Dispute Resolution Has Morphed into Mediation: Standards of
Conduct Must Be Changed,“ 50 Fla. L. Rev. 843 (December 1998).
Mistaking a mediator for a hearing officer, a Florida newspaper ran a headline stating, “Mediator will hear issue over turnpike
route.” Another, similarly inaccurate headline
read, “Mediator to force union, U.S. West to
talk.”
When a Florida city hired a “mediator”
to help settle a dispute between a bar owner
and the city over an ordinance banning nudity, the “mediator” represented the city and
negotiated with the bar owner, rather than
serving as a neutral facilitator. Likewise, in
Florida a school board attorney said that a
charter school could ask for a state education
department-appointed mediator to look into
whether the school was treated fairly by the
board.
On Jan. 12,1999, USA Todzyannouncsd
that “Mediators struggle to preserve cease-fire
in Kosovo.” The article went on to discuss a
hostage crisis. In an Oct. 7,1999, article on
arbitration, USA Today included a chart indicating numbers of arbitrationlmediation
cases, lumping the two ADR methods together as if they were one.
This frequent use ofthe word “mediation”
for any type of ADR activity perhaps occurs
because of the continuum between evaluative and facilitative mediation styles. Initially,
mediation was defined as facilitation of disputes by a neutral third party. Facilitation may
mean merely conveying information from
party to party or evaluation where the facilitator provides information including, in some
cases, advice or evaluation of the case. Commentator Leonard L. Riskin has acknowledged the “bewildering variety of activities
that fall within the broad, generally-accepted
definition of mediation.” Leonard L. Riskin,
Understanding Mediators’Orientations, Strategies and techniques: A Gridf i r the Perplexed,
1 Harv. Negotiation L. Rev. 7, 8 (1996).
LAWYER CO-OPTION: Mediation has been
co-opted by legal advocates and become part
of the adversary process, often providing “litimediation” where lawyers see mediation as
merely a step in the litigation process. A colleague of the author‘s “won” a mediation. A
Practice Tips article in Just Resolutions, the
publication ofthe Dispute Resolution Section
of the American Bar Association was titled,
“Advocacyin Mediation: Ten Pointers for Success.” See David Hoffman, “Advocacy in Me-
diation: Ten Pointers for Success,”Jmt Resolutions8 (October 1997). An advertisement in a
subsequent issue invited readers to a one-day
program that would teach them “How to Win
with Mediation.” The presentation list interchanged the words “mediation” and “ADR
and included: “Mediation Advocacy: Preparation and Performance for You and Your Client”; “Heavy Hitters-Learn the Secrets of
Making ADR a Success”; and “Hot Ethical
Issues Faced by Advocates in Mediation.” Law
schools offer courses in mediation advocacy.
Finally, the ABA’s Dispute Resolution Section
is “developing a moot court competition for
advocates in mediation.”
Mediation may be called a “hearing” or
an “arbitration.” Ohio now offers “Super
Mediation,” where a magistrate not assigned
to the discrete case undergoing mediation
assists the parties in making informed decisions. The magistrate may opine, “If I were
hearing this case, based on what I have heard,
I would decide. ...” Mediation-arbitration is
sometimes used; if the parties do not reach
agreement, the mediator decides the case.
PROLIFERATION OF MEDIATION TYPES
A N D STYLES: There are many types of me-
diation. The following exist in Florida: Circuit Civil mediations may include issues
regarding personal injury, contract, real estate, professional malpractice, probate, condominium law, auto negligence, eminent
domain, mortgage foreclosure, product liability, fraud and wrongful death. Family
mediations often involve custody and visitation, child support, spousal support, paternity, modification of previous orders and
attorneys’ fees. County Court mediations
may concern contracts, recovery of money
or property, landlord-tenant, property damage, theft, nuisance, auto and boat repair
neighborhood problems. These types of
mediation issues are mediated in many different styles based on the evaluative-facilitative continuum.
0
.
0
RECOMMENDED STANDARDS OF CONDUCT-OVERARCHING STANDARDS: The
changes in mediation, its co-option by lawyers, and its proliferationare clear. To keep pace
with mediation’sevolution, states have adopted
rules governingmediation. On April 1, Florida
changed its rule regarding the mediator’s role
to read as follows:
A mediator shall not offer a personal
or professional opinion intended to
coerce the parties, decide the dispute,
or direct a resolution of any issue. Consistent with standards of impartiality
and preservingparty self-determination
however, a mediator may point out
possible outcomes of the case and discuss the merits of a claim or defense. A
mediator shall not offer a personal or
professional opinion as to how the
case. Lawyers want other lawyers as mediators and they want that lawyer to be not just
any lawyer, but a litigator. See Barbara
McAdoo & Nancy Welsh, Does ADR Really
Have a Place on the Lawyer? Philosophical
Map? 18 Hamline J. Pub. L. & Pol’y 376,
390 (1997). They also prefer mediators who
have experience in the area of law related to
the case. Furthermore, lawyers want mediators to evaluate and to provide their view of
settlement ranges. State codes of mediator
conduct should provide for any style of me-
With so many styles of
mediators, the parties and their
attorneys should be given the
opportunity to decide which
type they want to employ.
PROCESS REGULATIONS: Standards of
Professional Conduct may include both
overarching standards and specific standards
that will be applied to each discrete type of
mediation. In addition, process rules may be
needed. These may include:
I . Ident$cation of mediation style. With
so many styles of mediators, the parties and
their attorneys should be given the opportunity to decide which type they want to employ. Some parties want mediators to
evaluate-whether through testing, giving
options, or by the mediator’s giving an opinion about the outcome. Others want purely
facilitative mediators who empower parties
and help them reach agreement. Some participants believe mediators may provide information but not give advice. Others want
subject matter expertise. If the mediator will
hear the case and then make a decision, the
parties should know they will experience
“mediation-arbitration.” If the mediator will
decide the case after a minitrial, the parties
should know this will be “litigation-mediation.” Therefore, the mediator should identify and name the style of mediation the
mediator provides.
2. Contractingfir discrete types of mediation.
court in which the case has been filed
will resolve the dispute.
Florida Rules for Court-Appointed Mediators, Rule 10.370(c); see In re Amendments
to the Florida Rules f a r Certijed and CourtAppointed Mediators, Docket No.
SC959491, 2000 W.L. 124396 (Fla. S.C.
Feb. 3, 2000).
Any general, overarching state ethical code
will be inclusive. If states fear that the inclusiveness of a comprehensive code will legitimize activities that they find inconsistent with
the goals of a particular type of mediation,
they should write specific codes and regulations to provide for discrete types of mediation. Explained below are some suggestions
for specific code provisions and process regulations.
SPECIFIC CODE OF CONDUCT SUGGESTIONS FOR DISCRETE TYPES OF MEDIATION:
In Circuit Civil mediation, where parties are
usually represented by attorneys who choose
the mediator, cases are of substantial value
and may consist of many issues. Circuit Civil
mediation participants’ goal is to settle the
diation as long as all parties agree on the
mediation style.
In family law, both pro se litigants and
those represented by attorneys, have different expectations depending in part on the
profession of the mediator. A mental health
professional is often very facilitative; a lawyer may be more evaluative. Participants often choose an accountant because parties
want an evaluation of their assets. Therefore, state codes should allow any style of
family mediation as long as all parties agree
on the mediator. Furthermore, mediators
should be allowed to offer a variety of mediation styles that will mesh with their professional backgrounds and the type of
mediation required.
In County Civil Mediation parties often
are not represented by attorneys and the cases
do not have a substantial value. Volunteer
mediators are frequently used, and the parties and their attorneys are not able to choose
their mediator. Therefore, only facilitative
mediation should be permitted in state codes
for county mediators; mediators should not
be permitted to give evaluations, opinions or
advice.
There are dozens of permutations of “mediation.” Therefore, identification of the process is
the important issue. The parties and the mediator should sign a pre-mediation agreementstating the type of mediation they expect.
PROFESSIONAL REGULATION: Regulation
of mediation will be problematic. Including all types and styles of mediation may
force professional regulatory bodies to proscribe mediation activities. For instance, if
lawyer-mediators give legal evaluations, are
they practicing law?Aware of possible confusion concerning an attorney’s role in
matters not traditionally considered practicing law, the American Bar Association
House of Delegates promulgated Model
Rule 5.7, expressly identifying mediation
as an ancillary service and continues to
study this issue. If during a mediation a
lawyedmediator “provides legal advice and
analysis to unrepresented parties,” it is possible the pro se parties could mistakenly
believe the lawyedmediator “is acting as
their lawyer.” Should this occur, Model
Rule 5.7 contemplates that the attorneymediator owes the same duties to these
parties as lawyers owe to their clients.
(continued on following page)
Liability Pitfalls May Be Waiting for Lawyer-Neutrals
(continued from front page)
area. For example, the American Bar Association/American Arbitration Association
Code of Ethics for Arbitrators in Commercial Disputes was promulgated in 1977 and
addresses issues such as integrity, fairness,confidentiality, compensation, and the role of
party-appointed arbitrators. A proposed revision of this Code of Ethics has been drafted
by the ABA and action by the ABA is expected
to take place this year.
But ethical standards for lawyers acting in
the role of mediators or early neutral evaluators are in a much more formative stage.There
have been recent efforts to address the dearth
of ethical guidance for the lawyer-mediator.
The ABA Model Rules of Professional Conduct and most state lawyer ethical codes and
bar rules do not address lawyer roles as thirdparty neutrals, who do not have “clients”
which they “represent”in the traditional sense.
The need for guidance in matters of professional conduct for lawyers serving as thirdparty neutrals has led to the establishment of
the CPWGeorgetown Commission on Ethics and Standards in ADR, which has drafted
a Proposed Model Rule of Professional Conduct for the Lawyer as Third-Party Neutral
A member of the Maine Bar for 33 years, David
Plimpton i s a principal i n the dispute resolution
firm of Plimpton & Esposito i n South Portland,
Maine. He is a member of the Society of Professionals i n Dispute Resolution and is Listed on the
Panels of Distinguished Neutrals of the CPR Institute for Dispute Resolution, as well as on the American Arbitration Association Panel of Commercial and
Construction Mediators and Arbitrators and other
arbitration and mediation panels.
Changing
Conduct Standards
(continued from previous page)
Moreover, the ethical rules that guide lawyers’ conduct are litigation-focused. Lawyers
representingclients in mediation might be wise
not to use an advocacy frame of reference and
instead to employ a shift away from a win-lose
dichotomy and toward shared gains. Because
the focus of mediation is a win-win solution,
lawyers should not use mediation to gain
adversarial advantage or to narrow issues for a
subsequent trial. Furthermore, to aid media-
(which is referred to in this article as the Proposed Model Rule). See “A Model Rule for
Lawyers as Third-Party Neutrals,” 17 Afternatives 78 (April 1999).
insurance explicitly covers those activities.
This coverage might be in the form of a traditional lawyer professional liability insurance
policy, which includes neutral roles in the
There likely will be
increasing attention to the
unpleasant question of what
circumstances may lead to
ne utra 1‘s malpractice liability.
Other recent efforts to promulgate ethical and professional standards include the
Model Standard for Conduct of Mediators
drafted by the American Arbitration Association, American Bar Association and the Society of Professionals in Dispute Resolution
(SPIDR)(1995).
With (a) the adoption of accepted ethical
and professional standards addressed to the
work of lawyer-neutrals and (b) the popularity of mediation, there likely will be increasing attention to the unpleasant question of
what circumstances may lead to lawyer-mediator or lawyer-arbitrator malpractice liability. Lawyers who wish to incorporate service
as third-party neutrals in their practices should
first be certain that their professional liability
covered professional activities, or in the form
of a special arbitrator and mediator liability
insurance policy.
tors and lawyers representing clients in ADR
processes, professional organizations such as
the Society of Professionals in Dispute Resolution, the American Arbitration Association,
the ABA Section on Dispute Resolution, and
the CPR-Georgetown Commission on Ethics
and Standards in ADR are designing Model
Standards of Conduct for Mediators.
In conclusion, ADR is morphing into
“mediation.”This is evident from the general
use of the term “mediation,” its co-option by
lawyers, and the proliferation of types of
mediation. The mediation community continues to struggle to develop overarchingstandards of conduct.
This “one size fits all” approach to mediation will suffice no longer. Specific standards
of conduct for variant types of mediation are
needed. Likewise,states, in their standards of
conduct, should adopt process regulations
that require identification of the type of mediation offered.
Finally, professions involved in mediation
should provide direction for participants. If
these issues are adequately addressed, the
changing face of mediation will yield results
that participants can understand and anticipate, and not unexpected results that are
borne of variant interpretations of a single
theme.
i
TYPICAL COVERAGE
Lawyers’ professional liability insurance policies, until recent years, did not include provisions dealing with the professional activities
of the insured lawyer as a neutral. These policies typically provided coverage for acts, errors or omissions of the insured lawyer in
rendering or failing to render professionalservices for others in the capacity as a lawyer,
fiduciary or notary public. “Professional services as a lawyer” often has not been defined.
Therefore, in such policies, it would be nec(continued on following page)
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