Model Standards of Mediator Conduct: Time for Revision?

Indisputably

FOIs Erin Archerd (Detroit Mercy Law) & Kristen Blankley (Nebraska College of Law) sent me the following for posting, which I am very happy to do:

Is it time to revise the Model Standards for Mediators? An informal gathering at the Spring ABA Dispute Resolution Conference considered this question, with follow-up discussions in both the ABA Section on Dispute Resolution Ethics Committee and the Committee on Mediator Ethical Guidance.

A number of questions have been raised in the course of these discussions, and we wanted to highlight a few of them for Indisputably readers, to get your feedback on whether you think the Model Standards are ripe for revision, or whether a different approach might be called for to address the needs of 21st Century dispute resolution.
What ethical dilemmas have arisen that are not well-answered by the Model Standards? Outgoing ABA DR Chair Nancy Welsh posed this question as a way of framing the discussion.

We’ll talk about some of the areas we were considering in this post, largely by framing questions rather than offering answers. Please comment with any additional areas we should be considering.

One of the biggest areas where practitioners and scholars have questioned the current Model Standards is in their application to Online Dispute Resolution (ODR). Does the mediator imposing communication technology run afoul of party self-determination? What if the mediator has a monetary interest in the company producing the technology? How do we measure whether a mediator is competent in using and explaining the technology? How does confidentiality apply to 4th party technology developers and 5th party Internet service providers (whose records may be subpoenaed, for example)? Susan Nauss Exon has a forthcoming article looking at many of these issues.

Are the Model Standards doing enough to address issues of solicitation and client relationships? Can mediators approach parties and offer to mediate a conflict? Can a mediator date a former mediation client? Should the Model Standards be doing more to address imbalance and unrepresented parties? Should they reflect access to justice more strongly? One Ethics Committee member pointed out there was not enough guidance in the Model Standards for situations in which only one party is represented by counsel.

Should a mediator’s obligation to ensure participant safety be laid out in the Model Standards? Mediators think about safety extensively, so why isn’t this reflected in the Model Standards? What does the impartiality standard’s call for “freedom from favoritism, bias, or prejudice” mean in practice? In recent years, there has been a push to have mediators increase their awareness of implicit biases that might be influencing them during a mediation. But could mediators use explicit bias or prejudice in choosing their cases in the first place? Kristen Blankley has an upcoming article on that question: Is a Mediator A Bus? How Legal Ethics May Inform The Question of Case Discrimination by Mediators, forthcoming Gonzaga L. Rev. (Summer 2017).

Another threshold question is whether dispute resolution – ODR, med-arb, facilitation, etc. – has developed to the point that processes that are not mediation, but which share some elements and are often conducted by mediators, should be included within the Model Standards. Do we expand the focus of the Model Standards to include some of these processes?
Are there excessive roll-out costs to revising the Model Standards at this time? A number of court mediation programs, for example, are modeled on the current Standards. Changes would involve a great deal of feedback gathering throughout the country.
On the other hand, many states are already adapting and changing their standards for mediators and other ADR professionals, so that process of feedback gathering would likely be useful in getting a better view of current standards throughout the country, including ways in which those state standards may conflict with the Model Standards. One issue that came up in the Ethics Committee was different policies across states about mediators drafting agreements and concerns about the unauthorized practice of law. Should the Model Standards address drafting by mediators or more clearly emphasize that mediation is not the practice of law?
Finally, is there an intermediate step that would could be taking? Could we start with illustrative comments to the Model Standards that would help guide ODR or other practitioners in issues they should be considering as they apply the Model Standards to their practice?
We know these questions are only the beginning. Please comment below with your additional thoughts and ideas.

                       

Sarah Cole

In law school, Professor Cole was Editor-in-Chief of the University of Chicago Legal Forum and won the award for best paper written in the law school in 1990. Following law school, she clerked for the Hon. Eugene A. Wright of the United States Court of Appeals for the Ninth Circuit.… MORE >