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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 . . .
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.
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
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:
Conflicts of Interest
Quality of the Process
Advertising & Solicitation
Fees & Other Charges
Advancement of Mediation Practice
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 Reporter’s Notes (2005)
Code of 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, 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
Online ADR Ethics Resources from
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.
Margaret M. (“Marnie”) Huff is a
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|Paula , Grundy VA||06/29/10|