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Shifting Paradigms: The Unauthorized Practice Of Law Or The Authorized Practice Of ADR

by John Cooley
February 2001

This article was previously published by the "Dispute Resolution Journal", of the American Arbitraiton Association, August-October 2000.

John Cooley

Introduction

In case you have not noticed, the very foundations of our fledgling ADR profession are under attack. Two states -- Virginia and North Carolina -- have already implemented guidelines defining certain mediator activities to be the practice of law.(1) Bar Associations across the country are uniting in an effort to expand the definition of "the practice of law" to incorporate the broadest scope of human activity possible. The American Bar Association's Ethics 2000 Commission is currently proposing and seeking comments on new rules that directly address the role of the lawyer as a neutral -- as being something distinct and different from the role of the non-lawyer neutral.(2) Paralleling these thrusts is the American Bar Association's internal debate on multi-disciplinary practice of law which ultimately could have a very destructive impact on the multidisciplinary practice of alternative dispute resolution.(3) The purpose of this article is to alert you -- lawyer and non-lawyer ADR professionals -- to these facts and to conscript your involvement in defending against what appears on the horizon to be powerful legions of rulemakers and legislators that threaten to lawyerize and parochialize the practice of alternative dispute resolution. What is happening can best be described as a concerted effort to, in effect, neutralize the neutrals. Although both lawyers and non-lawyers may be casualties of these efforts, non-lawyer neutrals are likely to suffer the most. Unless we act quickly and decisively, we could be picking up the pieces of our ADR profession in a few short years and, in a dazed condition, wondering how it all happened.

A helpful approach to analyzing the current situation and its impact on the future of the ADR profession would be to ask the questions a child would ask. Applying this Socratic approach, we would be inclined to frame four questions:

1. What is the Problem?

2. How do we optimally reframe the Problem?

3. What are the possible solutions to the reframed problem?

4. What is the optimal solution to the reframed problem?

Let's reflect on each of these questions in turn.

What Is The Problem?

Having wrestled for the last several years with this question, I have come to the conclusion that some well-intentioned members, and indeed leaders, of the legal profession, the ADR profession, and academia -- yes, and even myself -- have defined and have been trying to solve the wrong problem.(4) In short, the problem has been our perception of the problem. We have framed the problem in these terms: what activities of a mediator constitute the practice of law (or the unauthorized practice of law)? For reasons stated later, this question frames the wrong problem. We should be framing the problem in terms of the practice of ADR, rather than in terms of the practice of law or the unauthorized practice of law. One vehicle for understanding the cause of this basic misperception is the set of Guidelines on Mediation and the Unauthorized Practice of Law developed by the Department of Dispute Resolution Services of the Supreme Court of Virginia ("Guidelines" or "Virginia Guidelines"). Another vehicle for understanding the cause of the misperception is the national debate over whether evaluative mediation categorically constitutes the practice of law.

A. Misperception Spawned by the Virginia Guidelines

The introduction to the Virginia Guidelines state that "[w]hen ... law-related activities occur during mediation, they may raise ... issues of the unauthorized practice of law (UPL) for non-attorney mediators."(5) The Guidelines go on to state in another section: "The following are the two most common categories of mediator activities that may potentially involve the practice of law: Applying law to facts; Drafting settlement agreements that may be viewed as legal instruments."(6) The disturbing aspect of these statements is their inherent presumption that just because certain mediator activities appear to be activities that lawyers perform on behalf of their clients, they can constitute the practice of law, if engaged in by lawyer-mediators, and the unauthorized practice of law if engaged in by non-lawyer mediators -- vis-a-vis two or more disputing parties. This is a frivolous leap of logic. Where is the representative relationship? Where is the duty of loyalty? What is the fiduciary duty owed by whom and to whom? Where is the understanding of a party that the mediator is protecting that party's interests? How can the mediator receive confidential information from two parties with adverse interests and be practicing law with respect to either of them -- or both of them? How can a mediator accept a service fee from two people with adverse interests, yet be practicing law with respect to both of them? If a lawyer were practicing law in such situation, would not he or she be in a classic conflict of interest situation?

But more importantly, this extraordinary leap of logic leads to harmful results for mediation practitioners. First, it reduces the practice of mediation to an exercise in semantics. Non-lawyer mediators in Virginia now must carefully craft each phrase they speak, lest they be later accused of "the unauthorized practice of law".(7) This is micro-management of professionals at its worst. For example, the Virginia Guidelines give the following examples of "reality testing questions that raise legal issues" (emphasis added) which: (1) do not constitute the unauthorized practice of law; and (2) probably do constitute the unauthorized practice of law:

In a divorce mediation held in Virginia, if a non-lawyer mediator were to ask the following questions, he or she would:(8)

Not Be Engaged in the Unauthorized Practice of Law Be Engaged in the Unauthorized Practice of Law
"Have you both considered whether a court would allow Mary to take the children to Florida?" "Mary, do you realize that the court that would hear this case would not allow you to take the children to Florida over Bill's objection?"
"How would the stock be apportioned under the equitable distribution statute?" "Bill, have you considered giving up on the stock issue since a court probably would view the asset as separate property."

In a personal injury case in Virginia, if a mediator were to ask the following questions, he or she would:(9)

Not Be Engaged in the Unauthorized Practice of Law Be Engaged in the Unauthorized Practice of Law
"What is the statute of limitations for your claims?" "Nicole, do you realize that the two year statute of limitations for personal injury claims has expired and that if the statute was raised by Ken as an affirmative defense, a court would dismiss your lawsuit?"
"Do either of you know what the Virginia rules are regarding negligence and contributory negligence?" "Ken, have you considered that your own contributory negligence would prevent you from recovering damages from Nicole in court?"

The shocking reality, indeed the absurdity, of these examples taken from Virginia's own Guidelines is that, in Virginia, a mediator could be criminally prosecuted for asking any of the four questions in the right-hand column on the ground that he or she committed the crime of practicing law without being authorized or licensed to do so.(10) The folly of such micro-management is apparent. These Virginia Guidelines and others like it if adopted by other States will cause great harm to the ADR profession by muzzling mediators, by discouraging talented non-lawyers from entering the ADR profession, by reducing the mediation process to a mechanical, word-precise, self-conscious, inflexible, content-void exercise.

The other mediator activities that the Guidelines attempt to brand as the "practice of law" are those relating to the mediator's role in drafting settlement agreements. The Guidelines' drafting instructions are inconsistent and incomprehensible. First they state that the "mediator may take an active role in preparing the agreement for the parties if they want the mediator to perform this function."(11) Then, on the one hand, they say that "a mediator should not add provisions to an agreement beyond those specified by the disputants"(12) while on the other, they state "a mediator may suggest options for the parties to consider when reaching an agreement."(13) The Guidelines also essentially outlaw the use of "boilerplate" provisions in agreements.(14) What if the mediator suggests a boilerplate provision to which the parties agree? Is the mediator engaging in the unauthorized practice of law? The Guidelines' subtle distinctions are impossible to accurately discern and they defy compliance. As one commentator has astutely observed, the
"Guidelines set boundaries for mediators that may be difficult, in practice, to enforce. In the subtle and complex interactions of parties and mediator while they are creating a memorandum of agreement, it will often be difficult to discern whether the mediator's involvement has altered or enhanced the parties' own language."(15)

It must be emphasized that the Virginia Guidelines attempting to define certain aspects of mediation as the practice of law apply to both lawyer and non-lawyer mediators. Thus, these Guidelines will adversely affect the practice of mediation by lawyers both inside and outside the State of Virginia. Because evaluative mediation is considered the practice of law in Virginia, lawyers who are not licensed to practice law in Virginia will be deemed to be engaging in the unauthorized practice of law in Virginia if they are hired to conduct an evaluative mediation there. The Virginia Guidelines and others like them (e.g. those of North Carolina) will operate to parochialize the practice of mediation by lawyers and to interfere significantly with the parties' right to self-determination -- the right to hire the lawyer-mediator of their choice, no matter where the mediator is licensed to practice law.

B. Misperception Spawned by the National Debate Over Evaluative Mediation

The national debate around the issue of whether evaluative mediation is the practice of law has also caused us to misperceive the true problem. In an evaluative mediation, in contrast to a facilitative one, the mediator plays an active role in helping the parties to reality test, to accurately assess the strengths and weaknesses of their respective cases, and to predict what a likely result of an adjudication of the matter might be. Often, the parties request the evaluative mediator to provide them with an opinion of the fair settlement value of the case or with a recommended solution. Sometimes this joint request of the parties requires the mediator to take into account, even incidentally, the application of law to certain aspects of the dispute. This activity of applying law to facts, however slight, has sparked the debate over whether evaluative mediation categorically constitutes the practice of law. Those representing "practice of law" viewpoint generally take the stand that when a mediator evaluates the strengths and weakness of a party's case by applying legal principles to specific facts he or she is engaged in the practice of law.(16) They are apparently worried that mediation parties may be injured by reliance on erroneous information given to them by non-lawyer mediators.(17) Those advancing the counterargument urge mediators -- both lawyers and non-lawyers alike -- to actively evaluate the strengths and weaknesses of the disputing parties' cases by applying legal principles to the facts in the mediation.(18)

The argument holding mediation not to be the "practice of law" is considerably more persuasive for several reasons. First, the act of applying law to specific facts or even giving advice or rendering an opinion that incorporates a consideration of the applicable law does not, in itself, constitute the practice of law. We can point to many examples in society where non-lawyers apply law to a specific factual situation and render opinions and recommendations, yet they are not considered to be practicing law (or engaged in the unauthorized practice of law). Some of these include:

  • Jurors in the court system
  • Jurors in a private, simulated jury
  • CPAs and accountants (tax laws)
  • Non-law-trained employees of tax preparing
  • Companies, such as H&R block
  • Real estate appraisers (zoning laws;
  • Environmental laws)
  • Employees of title companies
  • Environmental experts
  • Police officers
  • Employees in every agency of federal and state government (evaluating applications for licenses, governmental benefits, etc.)

We could think of hundreds of other examples. If these people are not "practicing law" in doing their jobs, why should lawyer or non-lawyer mediators who perform evaluative mediation be deemed to be practicing law? The point where the logic of the "practice of law" proponents fails is in its inability to explain why lawyer or non-lawyer arbitrators do not practice law when they render binding or non-binding awards. Clearly, nonbinding arbitration is very similar to evaluative mediation. Yet, those subscribing to the "practice of law" theory assert that evaluative mediation is the practice of law and nonbinding arbitration is not -- though some "practice of law" proponents are now retreating from that position to contend that neutrals in both processes (nonbinding arbitration and evaluative mediation) are engaged in the practice of law. It is only a short step from nonbinding to binding arbitration. Will they next claim that binding arbitration is the practice of law? If they do, they will have disenfranchised a large part of the non-lawyer ADR profession that for decades has performed admirably as arbitrators in numerous types of dispute settings including the areas of employment, construction, environmental, real estate, and securities. Indeed, if members of the "practice of law" contingent take that route, they will be embarking, consciously or unconsciously, in the direction of neutralizing the neutrals. If they do not choose the route of arguing that binding arbitration is the practice of law, then their argument will be hoisted on its own petard. They will not be able to explain, logically, why nonbinding arbitration is the practice of law and why binding arbitration is not.

While this "practice of law" debate is interesting and engaging, it is simply the wrong debate. We have framed the wrong issue; we have defined (indeed, designed) the wrong problem. The problem is not "what is the practice of law (or the unauthorized practice of law) relative to mediation," but rather "what is the authorized practice of mediation within the larger practice of ADR". We are trying to solve the wrong problem because we are all inside a major paradigm shift in society and have not stepped back far enough to see the outer boundaries of the new paradigm. We are trying to apply the template with which we are familiar -- the practice of law template -- to an evolving profession -- the ADR profession -- whose ultimate boundaries are still vague, whose characteristics seem, in part, similar to the practice of law, but whose essence is distinctly and wholly different. Figure 1 below illustrates this perceptual problem.(19) Let us assume that we are shown only the top drawing in the vertical column below and asked: What computer keyboard symbol is being masked by the rectangle? Figure 1

Figure 1

Most people would visualize a capital "B" and give that as their answer (as shown in the middle drawing), perhaps because the right side of the rectangle suggests the vertical part of the letter capital "B". People are quick to apply a familiar template in solving problems. The correct answer, however, -- the number "8" -- would be misperceived. The top rectangle actually masks a symbol whose ultimate boundaries are vague, whose characteristics seem, in part, similar to a B, but whose essence, when fully exposed, is distinctly and wholly different from a capital "B". The same is true of the practice of law and the practice of ADR. Currently, when we look at our ADR profession, parts of it appear to be the practice of law ("B"), when in fact the ADR profession consists of something entirely different -- the practice of ADR ("8").

Thus, the challenge is to reframe the problem as presented. If we want to optimally reframe the problem, we must be willing to see and to appreciate a new paradigm. But first we need to understand the basic phenomenon of paradigms and paradigm shifts.

How Do We Optimally Reframe The Problem?

Solving the problem of determining how to optimally reframe the current problem in our profession must be first approached by educating ourselves about paradigms, paradigm shifts, and the paradigm effect. A paradigm is a set of rules and regulations, written or unwritten, that:

  • establishes or defines boundaries; and
  • tells one how to behave inside the boundaries in order to be successful.

A paradigm shift is a change to a new game, a new set of rules.(20) The process of shifting is called the paradigm effect. Paradigms can occur in scientific, technological, organizational, business, and social contexts, among others. A "prevailing paradigm" defines a set of rules by which problems are solved within a discrete context.(21)

A simple example of a paradigm shift in a technological context occurred last century in the watchmaking industry. The Swiss had traditionally dominated the world of watchmaking. In the beginning they were constantly improving their watches. They invented the minute hand and the second hand, they led the research effort in finding better ways to manufacture gears, bearings, and mainsprings of the then modern watches. They spearheaded the research in waterproofing watches and in self-winding watches. By 1968, the Swiss watchmakers had more than 65 percent of the unit sales in the world watch market and between 80 to 90 percent of the profits, worldwide. By 1980 their market share collapsed to less than 10 percent of the world market share. Their profit domination had plummeted to less than 20 percent. What had happened? Simple. Without fully appreciating it -- perhaps because of the narrowness of their focus -- the Swiss encountered a paradigm shift -- a change in the fundamental rules of watchmaking. Other watchmakers were introducing electronic devices as a substitute for purely mechanical watch movements. The industry's interest in gears, bearings, and mainsprings, was waning. In less than ten years, the Swiss watchmaking business that had seemed to secure, profitable, and dominant was essentially bankrupt. It is estimated that between 1979 and 1981, fifty thousand of the sixty-two thousand watchmakers had become unemployed. This was economically catastrophic for a country as small as Switzerland. For another nation -- Japan -- which had embraced the new paradigm of the electronic quartz watch, saw their profitability in watchmaking expand from 1% of the world watch market in 1968 to 33 percent of the world market in the 1990s, with an equivalent share of the profits. The irony of this situation is that the Swiss could have avoided its catastrophe if it had just stepped back to fully appreciate the prevailing and new paradigms, to think about their own future, and to fully appreciate the kind of change they were facing: a massive paradigm shift.

In any given context, the paradigm shifting process, or paradigm effect, can be illustrated by a curve. Figure 2 below shows various segments of a paradigm effect which might occur in any industry. The figure illustrates time as graphed against the number of problems solved in the prevailing paradigm, represented by the star on the vertical axis. As people start solving problems in new ways, using new rules, they see advantages to the application of the new rules and begin adopting their use successfully. Figure 2

Figure 2

In the B segment, rapid problem solving occurs to a point represented by a break in the B segment. It is at that point where the problems get more difficult and the rate of problem solving slows down. In the C phase, all the toughest problems of the prevailing paradigm need to be solved. Everyone in the field desires to solve these problems but no one has a clue how to do it. That is where a new paradigm appears that, for most people, is unexpected. Figure 3 below illustrates this phenomenon.

Figure 3

Figure 3

For a while, people who are happy with the prevailing paradigm will reject the new paradigm and try to apply the old rules to the new problems. A new paradigm puts everyone practicing the old paradigm at substantial risk. The higher one's position in the prevailing paradigm industry, the greater the risk. The better one is at solving problems under the prevailing set of rules, the more one has invested in it, and the more one has to lose by changing paradigms. Often outsiders appear on the scene and begin the paradigm shift -- they take risks to try out new rules -- new ways of doing things. As one author has noted:

"The paradigm shifter has played the role of catalyst, of change agent, and has stirred up a lot of thinking in the prevailing paradigm community. The community acknowledges that the problems on their shelf should be solved. They know they are not solving them.

They also know that the paradigm shifter has offered an alternative way of thinking about these difficult and important problems. Yet the community continues to defend the prevailing paradigm, because it is still very successful."(22)

Then come the paradigm pioneers to take the rough pathway that the paradigm shifters have discovered. These pioneers (some of whom may have also been shifters) are captivated, aesthetically and practically, by a new set of rules that suggests more successful solutions to problems than those achievable by the prevailing rules. As the same author points out:

"Driven by the frustration of the old and the appeal of the new, they cross the brink. They leap a professional chasm that separates the old paradigm, where the territory is well illuminated and where repu- tations and positions are clearly defined, into a new territory, illuminated by the new paradigm in such a limited way that it is impossible to know whether they are standing on the edge of an unexplored continent or merely on a tiny island."(23)

The new paradigm becomes the prevailing paradigm until a still newer paradigm appears and either persists or fails.

The "paradigm effect" theory helps us to understand what is now occurring in the organized bar and academia relative to the new paradigm of alternative dispute resolution. Many bar leaders and academics are rejecting this new paradigm being defined by a new and evolving ADR profession because they feel more comfortable with the old litigation rules and procedures which they know well and with which they feel comfortable. Other bar leaders and academics are not risk takers and are only partially embracing ADR so long as they can apply prevailing definitions of "the practice of law" to achieve a comfort level with the new paradigm. The paradigm pioneers are those within the evolving ADR profession who have the courage and tenacity to seek out a better way to do things and the intuition to see the new paradigm in its ultimate splendor, with the knowledge that when the rules change the whole world can change.

For the paradigm pioneers (leaders of the ADR movement), the optimally reframed problem is "what is the authorized practice of mediation within the larger practice of ADR". To answer this question (or to solve the reframed problem) requires the pioneers to define several terms: mediation, the practice of mediation, the authorized practice of mediation, ADR, and the practice of ADR. They are in the process of addressing all of those tasks at the present time in an effort to resolve the reframed problem.

What Are The Possible Solutions To The Reframed Problem?

There are many solutions to the reframed problem. There are substantial differences of opinion as to how even the basic processes of mediation and arbitration should be defined, not to mention the numerous hybrid ADR processes that have emerged over the last ten years or so. One point on which everyone seems to agree is that the process of defining the ADR processes, appropriate ADR practice, and ultimately the precise contours of the ADR profession will take a substantial amount of time, perhaps a decade or more. SPIDR International's(24) Committee on Credentials, Competencies, and Qualifications ("3CQ") has made great strides in establishing working groups to study topical areas of accreditation and registry, certification, practitioner membership, and competency. But an immense amount of work has yet to be done -- and all this to be accomplished within the context of a planned merger with two other national dispute resolution organizations -- the Academy of Family Mediators and Conflict Resolution Education Network.

In the face of these obstacles, the 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 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.

What Is The Optimal Solution To The Reframed Problem?

The optimal solution to the reframed problem has at least six elements:

  1. gaining time;
  2. intensive study;
  3. consensus;
  4. massive public education;
  5. strong ADR practice emphasis on the parties' rights of self-determination and informed consent; and
  6. at least as an interim measure, to define the ADR practitioner's professional and ethical role in relation to the judicial rather than the lawyer's role.

1. Gaining time.
It is important that current efforts to define mediation in relation to the practice of law be suspended indefinitely so that the designers of the ADR profession have sufficient time to study all relevant aspects of ADR practice and make careful and informed decisions about how it should be defined and regulated. Actually, there is no actual need for the "practice of law" proponents to expedite the lawyerizing of mediation. Nationwide, the number of misconduct complaints made against mediators has been de minimis. The National Conference of Commissioners on Uniform State Laws in early 2000 demonstrated great wisdom by slowing down the committee machinery looking into proposed national uniform legislation regarding mediation confidentiality. This conduct should serve as an example for those who are overly anxious to label aspects of mediation as the practice of law.

2. Intensive study.
The ADR profession designers have daunting tasks ahead. They must not only design standards of competency for neutrals in various types of ADR processes but they must also design standards and methods to properly train and evaluate ADR professionals. They will also be involved in how to properly regulate practitioners of the ADR profession. This latter task is most important because the current lack of certification, regulation and oversight of neutrals is in large part fueling the efforts of the "practice of law" proponents to bring mediation within the scope of lawyer regulation.

3. Consensus.
There are widely disparate views among members of our profession as to how, specifically, to define the ADR processes and as to what constitutes proper ADR practice in each of the processes. Consensus will not come easy. But it must come, if we are to become a self-regulated profession.

4. Massive public education.
Nationally, many more people know much more about ADR than they did ten years ago. This has been the result of widespread efforts of peer-review mediation proponents in our nation's school systems, many new periodical and newsletters covering ADR topics, court mandated ADR programs, and other means. However, the general public still has only a vague notion of what mediation and arbitration are, and practically no understanding of what the ADR hybrids are. If we are going to become a self-regulated profession we all must cooperate to educate the general public on the various beneficial services that our profession has to offer.

5. Parties' rights to self-determination and informed consent.
ADR profession leaders and designers must take immediate and continuing measures to emphasize the importance of practitioners preserving and guaranteeing to all parties who use ADR services the parties' rights to self-determination and informed consent. Self-determination is important because it preserves the parties right to freely and jointly choose the neutral (lawyer and nonlawyer) and the ADR process that best suits their specific needs. Informed consent is important because it best responds to the "practice of law" proponents' worry that users will be confused about the neutral's role and the nature and purpose of the process.

6. Focus on the judicial rather than the lawyer's role.
Finally, at least as an interim (or parallel) measure, the ADR profession leaders and designers should define the ADR practitioner's professional and ethical role in relation to the judicial rather that the lawyer's role. The judicial role is a much more appropriate and logical interim analog than the lawyer role. First, when performing their judicial role (which includes applying law to facts and assisting with the drafting of settlement agreements), judges are not practicing law.(25) Second, both lawyers and non-lawyers serve in the judicial capacity across the United States. Indeed, being a lawyer is not even a requisite qualification to serve on the United States Supreme Court. Although the American Bar Association's Ethics 2000 Commission is studying and proposing changes to the ABA's Model Rules of Professional Conduct for lawyers, there is currently no similar study being undertaken with respect to the ABA Model Code of Judicial Conduct. ADR profession leaders and designers should take an active role in urging the study and revision of the ABA Model Code of Judicial Conduct, first to modernize the judicial role to include standards relating to judges' evolving ADR functions; and second, to consider the inclusion of new Canons specifically addressing the neutral roles of lawyers and non-lawyers in the various ADR processes.

Conclusion

Very simply, my words here are a call to arms for all members of our new ADR profession. Who better than we -- the mediators and the arbitrators -- are more capable of solving and helping others to solve difficult problems. Our principal weapons are not insults and epithets, but rather our abilities to ask questions, to listen intently, to perceive clearly, to understand profoundly, and to articulate convincingly. If we work together we can conquer the challenges that currently confront our profession. If we continue to ask the questions a child would ask, we will learn forever; and if we dare to change the rules, we can succeed in changing the whole world.

End Notes

1. See David A. Hoffman and Natasha A. Affolder, "Mediation and UPL: Do Mediators Have a Well-founded Fear of Prosecution?" Dispute Resolution Magazine, 20 (Winter, 2000).

2. See Ethics 2000 Commission Proposed Rule 2.X -- Public Discussion Draft April 18, 2000 -- "Lawyer Serving as Third-Party Neutral". Other draft rule changes that relate in part to ADR are Proposed Rule 1.12, "Former Judge, Arbitrator, Mediator or Other Third-Party Neutral" and Proposed Rule 5.5, "Unauthorized Practice of Law".

3. See generally, John Gibeaut, "MDP on Deck," 86 ABAJ 22 (June, 2000); Peter C. Kostant, "The Future of the Profession: A Symposium on Multidisciplinary Practice: Breeding Better Watchdogs: Multidisciplinary Partnerships in Corporate Legal Practice," 84 Minn. L. Rev. 1213 (2000).

4. See generally, the symposium on the topic, "Is Mediation the Practice of Law?" in Forum, Number 33 (NIDR, June 1997).

5. Guidelines, p. 1.

6. Guidelines, pp. 4-5. The Virginia Guidelines prohibit mediators from giving legal advice. Conceding that the term "legal advice" has "not been precisely defined in Virginia," the Guidelines adopt the following definition for "legal advice in the mediation context": "At a minimum, a mediator provides legal advice whenever, in the mediation context, he or she applies legal principles to facts in a manner that (1) in effect predicts a specific resolution of a legal issue or (2) directs, counsels, urges, or recommends a course of action by a disputant or dis-putants as a means of resolving a legal issue." Guidelines, p. 13.

7. The Virginia Guidelines attempt to draw a line between providing legal information (which is not the practice of law) and giving legal advice (which is). The Guidelines are quite vague on this point and provide a playground for prosecutorial mischief.

8. Guidelines, p. 18.

9. Guidelines, p. 18.

10. 54.1-3904, Code of Virginia. Confounding this matter of permissible and impermissible mediator questions further is the Guidelines' seemingly inconsistent discussion evolving from the premise that mediators "may make statements that are declarative of the state of the law of a given legal topic and these statements are generally permissible." Guidelines, p. 16. The Guidelines provide the following statements declarative of the law that "probably would not be considered legal advice":

In the context of a divorce mediation: "In Virginia, custody involves two major components: with whom will the child primarily reside and who is responsible for making decisions concerning the upbringing of the child."

In the context of a personal injury dispute: "Generally, the statute of limitations in Virginia for personal injury claims is two years."

In the context of a commercial dispute: "Generally speaking, a contract for the lease of goods that exceeds $1000 must be in writing to be enforceable."

Guidelines, pp. 16-17. These declaratory statements that are not deemed by the Guidelines to be the unauthorized practice of law read much like the questions in the right hand columns of the two tables appearing supra in text which the Guidelines state would constitute the unauthorized practice of law.

11. Guidelines, p. 25.

12. Guidelines, p. 25.

13. Guidelines, p. 26.

14. Guidelines, p. 25.

15. David A. Hoffman and Natasha A. Affolder, supra note 2 at 21-22.

16. See, e.g., Carrie Menkel-Meadow, "Ethics in Alternative Dispute Resolution: New Issues, No Answers from the Adversary Conception of Lawyers' Responsibilities," 38 South Texas Law Review 407, 424 (1997).

17. See, e.g.,Carrie Menkel-Meadow, "Is Mediation the Practice of Law?," Alternatives, May 1996 at 60-61.

18. See, e.g., Donald T. Weckstein, "In Praise of Party Empowerment -- And of Mediator Activism," 33 Willamette Law Review 501, 543-44 (1997).

19. Figure 1 appears in Edward de Bono, Lateral Thinking: Creativity Step by Step, Harper & Row Publishers, p. 272 (1990).

20. See Joel Arthur Barker, Paradigms: The Business of Discovering the Future, HarperBusiness, pp. 33, 37 (1992); see also

Thomas S. Kuhn, The Structure of Scientific Revolutions, (2d Ed.), University of Chicago Press (1970).

21. Joel Arthur Barker, supra note 21 at p. 42. The remainder of this section, including Figures 2 and 3, is adapted from Id. at pp. 42-83.

22. Id. at 72.

23. Id. at 74.

24. See The International Society of Professionals in Dispute Resolution's website: .

25. American Bar Association's Model Code of Judicial Conduct, Canon 4G.

Biography


John W. Cooley is a former United States Magistrate, Assistant United States Attorney, Senior Staff Attorney for the United States Court of Appeals for the Seventh Circuit, and a litigation partner in a Chicago law firm. He is a past Chair of the Mediation Committee of the ABA Section of Dispute Resolution. He is a Fellow of the American Bar Foundation, the International Academy of Mediators, and the Chartered Institute of Arbitrators, London, England. In private practice in the Chicago area, he is a mediator and arbitrator on the ADR panel of JAMS (The Resolution Experts®). He has served as a Special Master for federal judges and as an arbitrator and mediator in a wide variety of complex, multi-million dollar commercial disputes, both domestic and international. He is an Adjunct Professor at Northwestern University School of Law where he teaches a course on negotiation and mediation.

Mr. Cooley is the author of The Mediator’s Handbook (Advanced Practice Guide for Civil Litigation) (NITA, Second Edition, 2006); Mediation Advocacy (NITA, Second Edition, 2002); Arbitration Advocacy (NITA, Second Edition, 2003); and The Arbitrator’s Handbook (NITA, Second Edition, 2005).  (For  book descriptions, see www.nita.org.)He has also authored more than one hundred articles on litigation, judicial, and ADR topics, and he is the principal writer and editor of The Creative Problem Solver’s Handbook for Negotiators and Mediators, (2 Vols.) (2005) published through the cooperation of the ABA Section of Dispute Resolution and the Association for Conflict Resolution.. (See www.abanet.org/dispute ). His newest professional book, Pracademics: Creative Problem Solving in Negotiation and Mediation, is scheduled for publication by Xlibris Corp. in 2008. He is a graduate of the U.S. Military Academy at West Point, New York, and is a decorated Vietnam combat veteran. He earned his J.D. from the University of Notre Dame Law School, spending a year of his law training studying comparative and international law at the School’s Centre for Legal Studies in London, England.



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