Disputing Blog by Karl Bayer, Victoria VanBuren, and Holly Hayes
Professor of Legal Practice Elayne E. Greenberg, Assistant Dean of Dispute Resolution Programs and Director of the Hugh L. Carey Center for Dispute Resolution at St. John’s University School of Law, has authored “When the Empty ADR Chair Is Occupied by a Litigation Funder,” NYSBA New York Dispute Resolution Lawyer, Vol. 10, No. 17, Spring 2017; St. John’s Legal Studies Research Paper No. 17-0007. In her publication, Professor Greenberg examines the ethical considerations that may be implicated when a so-called litigation funder provides party support in the alternative dispute resolution setting.
Here is the abstract:
Discussion about the ethical implications of having a litigation funder support a party in arbitration or mediation. Even though litigation funding has been around for some time and is gaining popularity, little is known about how litigation funding ethically influences settlement. When a litigation funder occupies the empty chair in an arbitration or mediation, the identity of the litigation funder must be disclosed at the onset of the dispute resolution procedure. This should be a question on the forms of all providers. Disclosure is just the beginning. However, disclosure is not the end of the ethics dilemma. Litigation funding agreements are not cookie cutter. Rather, they have varied economic terms and requirements that may implicate different ethical concerns when a dispute resolution participant is receiving the support of a litigation funder. As dispute resolution professionals, we need to examine this topic more thoroughly to preserve the integrity of our work. How Dispute resolution professionals should ethically address litigation funders who are providing financial support for parties in a dispute support for parties in a dispute resolution procedure is a never before broached discussion.
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