вход по аккаунту


Efforts to address ADR ethics.

код для вставкиСкачать
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
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
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.
CPR Institute for Dispute Resolution
Vol. 14, No. 8
September 1996
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
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).
Без категории
Размер файла
140 Кб
address, ethics, adr, efforts
Пожаловаться на содержимое документа