The 5th Step: ABA ADR Ethics Resources

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A slightly revised version of this article originally appeared in ADRNews (April 2010), a publication of the Tennessee ADR Commission.

Troubled by an ethics enigma? State ADR rules a little vague?

I suggest you . . .

Do
the 5 Step!

Maybe not as fun as dancing the Texas Two Step,
or the Tennessee Waltz in my home state, but it’s definitely worth taking these
5 steps if you want to develop a quality mediation practice.

Step 1:  Anticipate the ethics
issues. Scrambling to find an answer during a mediation
is not the best time for thoughtful consideration of thorny dilemmas.

Step 2:  Review your state’s ADR
rules and ethical guidance opinions carefully.

Step 3:  If you’re an attorney,
psychologist or other professional, read the relevant rules of professional conduct
and ethics opinions in your state. You may want to contact your state board of
professional responsibility for an informal opinion if the issue is under its
jurisdiction.

Step 4:  Consider court cases on
point, first any from your state, then from other jurisdictions.

Step 5:  Research your issue via
the American Bar Association (ABA) Section of Dispute Resolution web
site. 

Assuming you’re comfortable
researching a particular ethics dilemma yourself, rather than getting outside
professional advice, let’s explore some fantastic (and free) resources on the
ABA Section of Dispute Resolution web site . . .

Free
and Organized:  ABA Ethics Resources

The
American Bar Association provides valuable online resources at no cost, as a
service to all mediators, arbitrators and advocates in ADR proceedings, whether
you’re an ABA member or not.

National Clearinghouse for Mediator Ethics Opinions.
 This
database is an ongoing project of
the Ethics Committee, ABA Section of Dispute Resolution. Whether you’’re looking for
mediation ethics opinions in a
specific jurisdiction or analysis of an ethical standard, this online resource has
more than 300 opinions from 43 states to help mediators make smart choices. The
database includes a short summary of each opinion with a hyperlink to the
original opinion or document issued by the state or national body. The ABA updates the database
periodically, but the ABA Section of Dispute Resolution makes no representation
that the database contains all opinions issued to date. 

 

User-friendly search strategies are available: 

o  Keyword:  search through all categories by keyword

o  State,
year and opinion type:  search or limit searches by state, year or
opinion type (ethics opinion, grievance disposition, or operable rules)

o  Opinion
category:  search for opinions on a particular principle,
from 10 categories: 

Self-Determination                     

Impartiality                        

Conflicts
of Interest         

Competence                                

Confidentiality                             

Quality
of the Process    

Advertising
& Solicitation           

Fees
& Other Charges               

Advancement
of Mediation Practice       

Other

Mediator Ethics Advisory
Opinions.  The
ABA Section of Dispute Resolution Committee on Mediator Ethical Guidance
provides advisory responses to requests for ethical
guidance, based on the ABA/AAA/ACR Model Standards of Conduct for
Mediators (2005). The Committee’s scope is currently limited to
consideration of ethical issues pertaining to mediation. Opinions are also
indexed and included in the National Clearinghouse database described above. To
submit a mediation ethics inquiry, go to the intake form. 

ABA/AAA/ACR
Model Standards of Conduct for Mediators

o       Model Standards of Conduct for Mediators
(2005)

o       Reporter’s Notes (2005)

 

Code of
Ethics for Arbitrations / Settlement Negotiations

o       Code of Ethics for Arbitrators in Commercial
Disputes (2002)

o       Ethical Guidelines for Settlement
Negotiations (2002)

 

ABA Model Rules and Standards Relevant
to Attorneys and Neutrals

ABA Model Rules of Professional
Conduct – Amendments (2002),
including:

o  Recognition of neutral role for lawyers – Rule 2.4

o  Conflicts of interest for lawyer-neutrals – Rule 1.12

o  Duty of Candor in mediations and arbitrations – Rule 3.3,
4.1

o  Lawyers to advise clients of ADR options in resolving
disputes – Rule 2.1, Comment 5

o  Spreadsheet on states that have adopted ABA Model Rules of
Professional Conduct 2.4 and 2.2 (Rule 2.2 deleted by ABA Ethics 2000
Commission) – go to Dispute Resolution Ethics Resources,
then click on link to spreadsheet

 

ODR Ethics. 
The ABA participated in a collaborative project on online dispute
resolution ethics during Cyberweek 2009. The “ABA
panel on ODR Ethics and Online Mediation” has online discussion
threads on 5 Ethics and Online Dispute Resolution topics (impartiality,
cost & fees, confidentiality, establishing & enforcing ethics in ODR,
ethical dilemmas associated with platform/system design),

 

Additional
Online ADR Ethics Resources from ABA
Section of Dispute Resolution

o     Ethics Committee

o     Ethics information (includes links to some of the information
described in this article; also has links to ethical dilemmas published in the Section’s
e-newsletter Just Resolutions)

o     Report of ABA Task Force on Mediation
Quality (2008) (includes recommendations on follow-up research you
could initiate in your state)

 

Conclusion

 

Clients want quality ADR.  Part of that quality is adopting best
practices informed by your state’s ADR rules and the ABA Model Standards of
Conduct for Mediators. Take advantage of ABA ADR Ethics Resources – many of them
are free and online.