The full text of the article is available here. What follows is the table of contents and the introduction.
I. INTRODUCTION
II. THIS ARTICLE
III. A CONNECTICUT MEDIATOR IN A KANGAROO COURT?
A. The Connecticut Mediator’s Training and Experience
B. Connecticut Mediator’s Precautions Against the Unauthorized Practice of Law
C. The Mediation Leading to her Disciplinary Referral
D. The Divorce Hearing before Judge Vilardi-Leheny
E. Prior Connecticut Precedent
1. Connecticut Statutes
2. Connecticut Case Law.
3. Prior Decisions of the Statewide Grievance Committee
a. Carney Disciplinary Proceeding
b. Strong Disciplinary Proceeding
c. Decker Disciplinary Proceeding
4. 1976 Empirical Analysis of Pro Se Divorce in Connecticut
F. The Fremed Disciplinary Complaint
G. The Fremed Disciplinary Hearing
1. The Late-Filed E-mails
H. Proposed Decision and Outcome
I. Analysis of Fremed Proposed Decision
1. Defects in Factual Analysis
2. Due Process Issues
3. Incomplete Analysis of “Law Practice” Paradigm
4. Failure to Apply “Authorized Practice of Mediation” Paradigm
IV. THE “LAW PRACTICE” PARADIGM
A. Definition of the Practice of Law
1. American Bar Association Model Definition of the Practice of Law
B. The UPL Tests
1. “Incidental Services” Exception to UPL
a. Drafting Activities of Non-lawyers
2. Consumer Protection Rationale
C. UPL Disciplinary Bodies
V. UPL IN THE MEDIATION CONTEXT
A. 2002 Resolution of the ABA’s Dispute Resolution Section
B. ACR’s 2004 Proposed Policy Statement on the “Authorized Practice of Mediation”
C. State Ethics Advisory and Grievance Opinion on the UPL Issue in the Mediation Context
VI. DEVELOPING THE “PARALLEL” PARADIGM: THE “AUTHORIZED PRACTICE OF MEDIATION”
A. Definitions of Mediation
B. Role of the Mediator and the Practice of Mediation
1. Styles, Orientations, and Tasks of Mediators
2. Background, Training, and Skill Diversity Among Mediators in the Field: The Role of Nonlawyer-Mediators
3. Nonlawyer-Mediators in Court-Connected Mediation Programs
C. Constraints of Mediator Ethics Codes
D. Little Evidence of Harm to the Public from Services Provided by Mediators
VII. THE “INTERIM” PARADIGM?: UPL GUIDELINES OF MEDIATORS
A. Context Is Everything
B. Distinction between Legal Advice and Legal Information
1. Virginia UPL Guidelines
2. Georgia UPL Guidelines
3. Colorado UPL Guidelines
4. North Carolina UPL Guidelines
5. CCDM Mediation Standards
C. Authority to Draft MOUs, Settlement Agreements, and Court Forms
1. Virginia UPL Guidelines
2. Colorado UPL Guidelines
3. Georgia UPL Guidelines
4. North Carolina UPL Guidelines
5. CCDM Mediation Standards
VIII. PRECAUTIONS INDIVIDUAL MEDIATORS CAN TAKE TO AVOID UPL CHARGES
A. More Mediation Training and Education
B. Pre-Mediation Contacts
C. During the Mediation Session
IX. THE MEDIATION FIELD’S CHALLENGE: “PUSHING BACK” AGAINST THE “LAW PRACTICE”
PARADIGM A. New Laws Exempting Mediators from the Definition of the Practice of Law
B. Making Precedent and Defending our Brothers and Sisters
C. Designing Regulatory Systems for Mediators—Crafting the “Parallel” Paradigm
X. CONCLUSION
I. INTRODUCTION
Mark Twain’s book, A Connecticut Yankee in King Arthur’s Court, [1] tells the story of Hank Morgan, a 19th-century resident of Hartford, Connecticut, who wakes one day to find himself in early medieval England. Hank uses his knowledge of modern technology, advertising, and democratic values to influence the superstitious, uneducated, and brutal aspects of English society. Twain exposes the romanticized ideas about medieval chivalry and life under the thumb of powerful forces, including the aristocracy and the Roman Catholic Church. [2]
A review in an 1889 issue of the Boston Sunday Herald noted: “the pages are eloquent with a true American love of freedom, a sympathy with the rights of the common people, and an indignant hatred of oppression of the poor, the lowly and the weak, by the rich, the powerful and the proud.” [3]
This article tells the cautionary tale of a Connecticut therapist-mediator, [4]Dr. Resa Fremed, [5] faced with a disciplinary proceeding in what she believes was held in a kangaroo court. [6]She spent $6,000 out of her own pocket unsuccessfully defending a complaint accusing her of the unauthorized practice of law (UPL).
When the author interviewed her for this article, Dr. Fremed still had a poor understanding of what she had done that had drawn the attention of the family law judge who requested the disciplinary investigation. She also had a vague understanding of the basis for the consent judgment [7] she reluctantly signed with the Chief Disciplinary Counsel because she could no longer finance her defense or endure the emotional and psychological toll of a disciplinary proceeding. She cannot translate into action the limitations of the consent judgment and so, Connecticut has lost a skillful family mediator because she is simply too afraid to practice in the state.
A careful review of the facts leading to her disciplinary proceeding and a careful review of the transcript of that proceeding leads to one conclusion—no clear and convincing evidence showed that she had engaged in the practice of law. At the same time, that same review shows that her behavior fell within a reasonable interpretation of the ethics guidelines—both aspirational and mandatory—that apply to the mediation field. The disciplinary proceeding highlights one of the cross-cultural conversations that occur when lawyers talk with mediators about mediation.
More specifically, Professor John W. Cooley suggests that we need to reframe the problem presented when nonlawyer-mediators provide certain services—including option generation, option evaluation, and the drafting of mediated settlement agreements. [8]Instead of applying the dominant paradigm represented by the various analyses of the practice of law, the mediation field needs to provide a competing paradigm that asks “what is the authorized practice of mediation within the larger practice of ADR?” [9] Cooley explains:
[T]he principal quandary of the pioneers and designers of this new paradigm—the ADR profession—is that members of the prevailing—law practice—paradigm want to apply their law practice definitions before the pioneers have had an opportunity to define basic terms and establish clear boundaries of their ADR profession. The pioneers, therefore, must design an interim paradigm to avoid being subsumed into the law practice paradigm. An interim paradigm, or as some would urge, a “parallel” paradigm, appears to be the optimal solution to the reframed problem. [10]
This article does not attempt to design an “interim” or “parallel” paradigm. Instead, it applies several expressions of that paradigm to the specific facts of this disciplinary proceeding. It concludes that Dr. Fremed adhered to the values of her mediation profession. However, the application of a broad interpretation of the prevailing “law practice” paradigm to her situation had a significant impact on mediation in Connecticut. As Cooley predicted, aggressive UPL enforcement or suggested efforts to avoid it “muzzle[s] mediators, . . . discourage[s] talented non-lawyers from entering the ADR profession, [and] reduce[s] the mediation process to a mechanical, word-precise, self-conscious, inflexible, content-void exercise.” [11] If disciplinary bodies in other states use Dr. Fremed’s case as precedent, it will have a much broader and inappropriate impact on the mediation field.
This article joins Cooley’s “call to arms” [12] and invites the mediation field to play a much more active role in disciplinary proceedings that involve mediators. The mediation field should demand greater due process guarantees in these proceedings, demand that the disciplinary body meet a high burden of proof to support a finding of unauthorized practice of law, support mediators and their attorneys through expert testimony and amicus briefs, and generally ensure that the disciplinary bodies are well-schooled in the “authorized practice of mediation” paradigm before they make a decision in a proceeding.
This article also calls for the mediation community to accept greater responsibility for the regulatory vacuum that allows UPL disciplinary bodies to step in more easily and apply the “law practice” paradigm. The field should actively engage in changing applicable law through legislation, creating new regulatory infrastructures for mediators, and pursuing litigation to establish favorable precedent.
Unfortunately for Dr. Fremed, neither persons operating the Connecticut court-connected mediation programs nor members of its mediation community have created the regulatory “infrastructure” that supports high quality mediation in the state. [13] That infrastructure helps develop the “parallel” paradigm of what constitutes the “authorized practice of mediation.” At the time of Dr. Fremed’s disciplinary proceeding, Connecticut had no court-approved standards of ethics governing mediators. It had no formalized court-approved training program for mediators or other barriers of entry to the field. It did not attempt to discover if prospective mediators had good moral character. It had no licensing, registration, certification, or recertification process. It did not require mediators to get continuing mediator education. It had no immunity statute for mediators. And, it had no ethics advisory panel that could help mediators resolve the inevitable ethical dilemmas they face. [14]
Instead, a private group of Connecticut mediators, the Connecticut Council for Divorce Mediation (CCDM), offered some of the elements of the “infrastructure” supporting mediators in the state. But none of those elements had the express blessing of the Connecticut Supreme Court or the organized bar. In other words, they carried limited weight among those persons who might decide the UPL issue in the context of mediation. More importantly, without the dialogue that accompanies design of a regulatory infrastructure, the legal community perpetuates many misconceptions about mediation.
Had Connecticut judges, lawyers, and mediators created a more comprehensive infrastructure for mediation, the “parallel” paradigm arising from that infrastructure could have changed the outcome in this case. First, it may have changed the way Judge Vilardi-Leheny analyzed the situation before she decided to make a referral to the disciplinary body. Second, it could have changed the way the members of the disciplinary body analyzed the facts of the situation. While fears of a disciplinary proceeding do not alone justify the field’s efforts to create the “‘parallel’ paradigm,” “the current lack of certification, regulation, and oversight of [mediators] is in large part fueling the efforts of the ‘practice of law’ proponents to bring mediation within the scope of lawyer regulation.” [15] The author sees the development of the “parallel” paradigm in every state as a way to “push back” against the “law practice” paradigm.
End Notes
1 MARK TWAIN, A CONNECTICUT YANKEE IN KING ARTHUR’S COURT (Barnes & Noble Classics 2005) (1889)
2 See generally id.
3 Mark Twain’s Masterwork: A Connecticut Yankee at King Arthur’s Court, SUNDAY HERALD (Boston), Dec. 15, 1889, at 17, available at http://etext.virginia.edu/railton/yankee/cybosher.html.
4 The author apologizes in advance for using the term nonlawyer-mediator in this article, which some mediators have labeled “pejorative.” Lemoine D. Pierce, Letter to the Editor, It’s Time to Get Rid of the Term “Non-Lawyer,” DISP. RESOL. MAG., Fall 1998, at 2, 2; see also Ericka B. Gray, What’s in a Name? A Lot When “Non-” Is Involved, 15 NEGOTIATION J. 103, 103 (1999); David A. Hoffman, Is There a Niche for Lawyers in the Field of Mediation?, 15 NEGOTIATION J. 107, 107–08 (1999) (“When the term ‘non-attorney’ is used scornfully or dismissively to describe these [mediation] colleagues, it is painful, and I stand shoulder-to-shoulder with Ericka [Gray] and other mediators who seek to end this invidious distinction.”).
5 Dr. Fremed granted the author the right to disclose her name and to discuss the facts of her disciplinary proceeding. Dr. Fremed waived her right to confidentiality and she made all the records of the proceeding available to the author. The author deeply appreciates Dr. Fremed’s candor and courage.
6 A “kangaroo court” is “a mock court in which the principles of law and justice are disregarded or perverted [and] characterized by irresponsible, unauthorized, or irregular status or procedures.” WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY 657 (1985).
7 The Chief Office of Disciplinary Counsel called the consent judgment a “Stipulation.” See infra note 317 and accompanying text.
8 John W. Cooley, Shifting Paradigms: The Unauthorized Practice of Law or the Authorized Practice of ADR, DISP. RESOL. J., Aug.–Oct. 2000, at 72, 77.
9 Id. (quotation marks omitted).
10 Id. at 78; see also Jacqueline M. Nolan-Haley, Lawyers, Non-lawyers and Mediation: Rethinking the Professional Monopoly from a Problem-Solving Perspective, 7 HARV. NEGOT. L. REV. 235, 282–86 (2002) (advocating a “power-sharing and problem-solving” approach); David A. Hoffman & Natasha A. Affolder, Mediation and UPL: Do Mediators Have a Well-Founded Fear of Prosecution?, DISP. RESOL. MAG., Winter 2000, at 20, 22–23 (asserting the need for greater clarity and uniformity in defining terms).
11 Cooley, supra note 8, at 74. Cooley makes the argument that the mediation field’s attempt to advise nonlawyer-mediators how to avoid engaging in the practice of law will lead to these negative affects on the field. Id. Obviously, application of the law practice paradigm in a specific situation involving a nonlawyer-mediator can have the same affect, only more directly.
12 Id. at 79.
13 3. For a discussion of a comprehensive regulatory system, see Paula M. Young, Take It or Leave It. Lump It or Grieve It: Designing Mediator Complaint Systems that Protect Mediators, Unhappy Parties, Attorneys, Courts, the Process, and the Field, 21 OHIO ST. J. ON DISP. RESOL. 721, 731–41 (2006) [hereinafter Young, Take It or Leave It].
A comprehensive regulatory system typically consists of several components. First, the regulatory system creates barriers of entry to the field consisting of several possible components: (a) training requirements that vary depending on the type of mediations the mediator intends to conduct, (b) ethics training, (c) moral character reviews, (d) minimum degree or professional license requirements, (e) written tests, and (f) performance-based testing or evaluation. The system may also grant official recognition that the mediator has passed these barriers to entry by certifying, registering, or rostering the mediator. The regulatory system may regulate or approve mediation training programs. The system may also require mediators who have successfully passed the barriers of entry to prove at a later date—through a recertification or re-registration process—that they are committed to the mediation field and to their skill development. The system may require continuing mediation education, including additional ethics training, or proof that the mediator has completed a specified number of mediations in a specified time period. The regulatory system may also support mediators by providing ethics information, encouraging compliance with aspirational ethics guidelines, creating a mandatory ethics code, and issuing ethics advisory opinions. The regulatory system may further provide rules or guidelines for interacting in the legal world on issues of mediation confidentiality, the unauthorized practice of law (UPL), and mediator immunity. It should offer public oversight through well-designed grievance systems. Finally, a comprehensively designed regulatory system will grant the state supreme court or its ADR administrator the power to sanction mediators for ethical violations or other misconduct. Those sanctions would at least include the ability to remove mediators from court-approved mediator rosters. Id. (footnotes omitted).
14 E-mail from Kate W. Haakonsen, Partner, Brown, Paindiris & Scott, LLP, to author (Feb. 22, 2008, 10:40:00 EST) (on file with author).
15 Cooley, supra note 8, at 78.
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