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 . . .
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
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
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 . . .
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.
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
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
year and opinion type: search or limit searches by state, year or
opinion type (ethics opinion, grievance disposition, or operable rules)
category: search for opinions on a particular principle,
from 10 categories:
of the Process
& Other Charges
of Mediation Practice
Mediator Ethics Advisory
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.
Model Standards of Conduct for Mediators
o Reporter’s Notes (2005)
Ethics for Arbitrations / Settlement Negotiations
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,
o Lawyers to advise clients of ADR options in resolving
disputes – Rule 2.1, Comment 5
o Spreadsheet on states that have adopted
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
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),
Online ADR Ethics Resources from
Section of Dispute Resolution
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)
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.