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

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

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.

                        author

John Cooley

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… MORE >

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