96 Alternatives (continued from preuious page) into two categories involving qualifications, experience, style and process on one hand; and relationship and bias on the other. Probably the most important question is how many mediations or other ADR procedures the neutral has handled. What is the neutral’s track record for getting matters resolved? What is the ratio of successes to failures? Is the neutral’s mediation style primarily evaluative or facilitative? To which professional organizations, if any, does the neutral belong? Neutrals should disclose any standards of conduct which they embrace or reject. ADR Counsel needs to know if the neutral works full-time providing ADR services or offers them ancillary to a law or other practice. Has the neutral had any formal ADR training; if so, how much, and from whom? Additionally, it is important to know how the neutral feels about certain essential issues in mediation, such as: whether the mediator has a duty to ensure that the disposition is fair, or simply that the dispute is settled; and whether the mediator thinks the parties should have equal knowledge of underlying facts and equal bargaining power. In connection with potential bias, ADR Counsel should expect the neutral to report any relationships with parties that might create a bias or even give the appearance of partiality. Another question to ask is how many times the neutral has been nominated by the opposing party in other procedures. Does the neutral have a policy about future relationships with the parties? If, say, the neutral is an attorney in private practice, does he or she reserve the option to later represent one of the disputants? Has the neutral ever referred matters to either of the disputants? Adequate disclosure before the process begins can avoid many potential ethical problems in the conduct of ADR proceedings. Until uniform disclosure requirements become generally endorsed within the dispute resolution community, the best recourse for ADR Counsel is to ask a lot of questions. i CPR Institute for Dispute Resolution Vol. 14, No. 8 September 1996 EFFORTS TO ADDRESS ADR ETHICS Disclosure is but one o f a wide array of ADR ethics issues now capturing the spotlight. These are some of the recent efforts to address ethical issues in ADR practice: Comprehensivereview of ethical issues. CPR’s Commission on Ethics and Standards of Dispute Resolution Practice has convened a blue-ribbon panel of experts to review a number of critical issues. Incremhg attention by legal scholars. See “The Dileininas of Mediation Practice,” by Robert A. Baruch Bush (a 1992 report on a study for the National Institute of Dispute Resolution), and “Professional Responsibilities for Third Party Neutrals,” Carrie Menkel-Meadow,Altmatives, September 1993 at p. 129. General standards for neutrals. The American Arbitration Association, American Bar Association and the Society of Professionals in Dispute Resolution last year promulgated standards of conduct for mediators. Previously, SPIDR adopted Ethical Standards of Professional Responsibility and the ABA and AAA adopted a Code of Ethics for Arbitrators in Commercial Disputes. Provider organiration commitments to fairness. JAMS / E n d i sp u te ti as adopted niininiuni standards of procedural fairness in employment disputes a n d has said it would not administer cases if the underlying ADR clauses don’t nieet these standards, Alternatives, May 1996 at p. 65. The AAA has recently released a revised set of procedural rules containing d u e process guidelines for mediation and arbitration of einployment disputes, Altmnative.v,July/ August 1996 at p. 89. Barassociation interp-etations. Ethics committees of local bar associations are interpreting attorney rules o f conduct to address questions raised by ADR providers. For example, the Suffolk County Bar Ethics Comniittee concluded that an attorney may not become associated with a psychologist and assist as an attorney in a “divorce mediation” for the purpose of resolving all marital issues and generating a separation agreement, New York Law Journal, March 6, 1996, at p. 1 1 . However, an ethics opinion by two advisory committees to the New Jersey Supreme Court held that ADR is the practice of law and that attorneys may render ADR services as part of their legal practices, World Arbitration & Mediation Report, June, 1994 at p. 126. Subject-specific guidelines. Due process guidelines for employment disputes have been developed by one of the ABA sections (Section of Labor and Employment Law’s Committee on Labor Arbitration and the Law of Collective Bargaining Agreements) and endorsed by major ADR providers, AltPmatives, March 1995 at p. 34. Similarly,standards of practice have been developed for lawyermediators in family disputes. S t a t e ~ e d t i c s r u l e sVarious . states, through their courts or legislatures, are considering rules-or have already passed them-on the subject of conflicts and disclosure in mediation. (See Florida Rules for Certified and Court Appointed Mediators, Rule 10.070; Nebraska Proposed Amendments to Code of Professional Responsibility DR 10-101; Hawaii Standards for Private and public Mediators in the State of Hawaii, Section 111, Impartiality; Indiana Supreme Court Rules for ADR, Rule 7, Standards for Neutrals.) Court decisions. Increasingly, courts are scrutinizing relationships of neutrals, parties and their counsel to determine if prior contacts warrant vacating awards or if conduct is objectionable. See I@i-are lntmiational, Inc. u. CC,Medical, Inc., 68 F.3d 429, (1995) (conduct of party-appointed arbitrators), and Sunkisl Soft Drinks u. Sunkist GrowPrs, Inc., 10 F.3d 753 ( 1 lth. Cir. 1993) (duty of neutral to disclose prior contacts).