Specificity of Some Ethical Duties of Lawyer Mediators and Necessity of Regulation
Keywords:
mediation, lawyer, mediator, conflict of interests, neutrality, self-determination, confidentiality, diligence and competence, equal treatment, mediation agreement, representation in mediation, ethics policy, rules of ethics, lawyer mediator, clientAbstract
Mediation in Georgia is supported by state policy and its successful functioning, as part of the whole system of dispute resolution mechanisms, is the demonstration of public interest. Mediation is a significant mechanism for supporting legal, social stability and dialogue, and apolitical means for implementing state policy.
Mediation has the potential to transform not only an individual, but also society. Therefore, it should be based on public recognition, the confidence of the society at large towards the fairness and ethical integrity of the mediation process.
Institutionalization of mediation necessitates the refinement of legal culture and understanding of dispute resolution. The mentioned understanding is largely formed by the setting of ethical standards and the implementation of effective instrumental infrastructure for their enforcement in the internal state system.
Due to the mobility of lawyers through the involvement in traditional formal and alternative dispute resolution procedures in different capacities, and respectively, ever growing demands of the legal profession, it becomes necessary to set ethical standards for “cross-professional” practice of lawyers and its improvement.
The present article is dedicated to the research of the substance of ethical basis for the involvement of lawyers in the capacity of a third neutral party in alternative dispute resolution procedures, as well as the necessity for setting rules of ethical conduct, considering ever increasing demands of the legal profession, for “cross-professional” practice of lawyers.
The standards of ethical conduct of lawyer mediators may be regulated by means of expanding current rules of professional ethics for lawyers, by determining a functionally different, neutral role in the mediation process, as well as by means of setting norms of proper conduct through an independent code of ethics.
In the course of the formation and application of the norms of ethics, ensuring their uniform application within the bounds of the general framework of state policy in ethics field should be a crucial principle.
References
A Litigative History the Development of the ABA Model Rules of Professional Conduct, 1983-2005, 2006, 288.
Annotated Model Rules of Professional Conduct, 6th ed., Center for Professional Responsibility, ABA, 2007, 288, 193-194, .
ABA Model Rules of Professional Conduct, 1983, Rule 2.4. (2).
American Academy of Matrimonial Lawyers, Rule, 8.4, <http://www.aaml.org/library/publications/19/bounds-advocacy/3-conflict-interest>.
Ashgate Publishing, Dorchester, 2014, 253.
ABA Commission on Ethics 20/20, Resolution 105D (Aug. 6, 2012), <http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/2012_hod_annual_meeting_105d.pdfhttp://www.americanbar.org/content/dam/aba/administrative/ethics_2020/2012_hod_annual_meeting_105d.authcheckdam.pdf>.
American Bar Association’s E2K Report, <http://www.americanbar.org/groups/professional_responsibility/policy/ethics_2000_commission.html>.
ADR Group Mediation Procedure and Rules (in Civil and Commercial Cases), Rule 5.2., .
Austrian Code of Conduct for Mediators, Art. 2.2.5.
CPR Georgetown Commission on Ethics and Standards in ADR - Model Rule for the Lawyer as Third Party Neutral, 2002, (Final edition - 2004), Rule 4.5.2. (a) (1), (a) (3); 4.5.3. (d), (b) (1), (b) (2); Rule 4.5.4 (b) (1), (d), (a) (4), (c), (a)(3); 4.5.5. (a), (c); 4.5.6. (c), (a).
<http://www.cpradr.org/RulesCaseServices/CPRRules/ModelRulefortheLawyerasThird-PartyNeutral.aspx>.
Code of Professional Ethics of Lawyers, approved on April 15, 2006, by the General Meeting of the Georgia Bar Association, with additions and amendments effected on December 8, 2012.
Conference on Mediation, March 29, 1996, Geneva, Switzerland, <http://www.wipo.int/amc/en/events/conferences/1996/gurry.html>.
Canon I.D. of the Code of Ethics for Arbitrators in Commercial Disputes (AAA-ABA, 1977), <https://www.adr.org/aaa/ShowProperty?nodeId=/UCM/ADRSTG_003867>.
CEDR Model Mediation Procedure (used in General Civil and Commercial Cases),
ICC ADR Rules (in Commercial Cases), 1 July, 2001, .
Directive 2008/52/EC on Certain Aspects of Mediation in Civil and Commercial Matters, Adopted by the European Parliament and the Council of the European Union on May 21, 2008, L 136/3, 24.05.2008.
Directive 2008/52/EC on Certain Aspects of Mediation in Civil and Commercial Matters, Adopted by the European Parliament and the Council of the European Union on May 21, 2008, L 136/3, 24.05.2008, Art. 12, <http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:136:0003:0008:En:PDF>.
Draft of Principles of ADR Provider Organizations, CRP-Georgetown Commission on Ethics and Standards in ADR, 1999, 2000-2002, Principle IV, VI, Complaint and Grievance Mechanisms.
Ethical Standards of Professional Responsibility, SPIDR, 1986, Background and Qualifications.
Fla. R. Civ. P. 10.370 (c) (2002), Article 3.2.1. 6.1.
Florida Rules for Certified and Court-Appointed Mediators (ADR Resource Handbook, January, 2015), Rule №10.310 (b), <http://www.mediate.com/articles/floridarules.cfm>.
Georgia Law on Lawyers, [29.12.2004 №970], Article 6.
Model Rule for the Lawyer as Third Party Neutral, Rule 4.5.1 (a), (b), 4.5.4 (b) (1), 2002, (Final edition - 2004).
JAMS Mediator Ethic Guidelines, §1, <http://www.jamsadr.com/mediators-ethics/>.
Mediator Standards Board, National Mediator Accreditation Standards, Professional Standards and Ethics, Australian Center for Justice Innovation, 11.2, 7-1, 2015, 11, 14.
Model Standards of Conduct for Mediators, AAA, ABA, ACR, 1994, Revised 2005, Standard I.B.,
Mediator Standards Board, National Mediator Accreditation Standards, Professional Standards and Ethics, Australian Center for Justice Innovation, 7-1, 2015, 11.
New Jersey Disciplinary Rules of Professional Conduct, 2001, RPC 1.12 Former Judge, Arbitrator, Mediator or Other Third-Party Neutral or Law Clerk, <https://www.law.cornell.edu/ethics/nj/code/>.
New York Lawyer's Code of Professional Responsibility, EC 5-20, (1999, updated in 2007), 46,
<https://www.nysba.org/WorkArea/DownloadAsset.aspx?id=26638>.
National Standards for Court-Connected Mediation Programs, Center for Dispute Settlement and Institute of Judicial Administration, 1992, Standard 2.6.
Poly Software International, Inc. v. Su, 880 F. Supp. 1487 (D. Utah 1995), <http://law.justia.com/cases/federal/district-courts/FSupp/880/1487/1408247/>.
Supreme Court of Texas Ethical Standards for Mediators, 2011, Standard 3, <http://www.txmca.org/ethics.htm>.
Similar provision is included in the Virginia Rules of Professional Conduct stipulate similar provision, Virginia Rules of Professional Conduct, 2.10. (b) (1), < http://www.vsb.org/docs/2009-10-pg-rpc.pdf>.
State Bar of Arizona v. Arizona Land Title and Trust Co., 366, 2, d.1., 8-9, (Ariz. 1961).
State Bar of Texas Professional Ethics Committee, Opinion 583, 2008.
Tennessee Supreme Court Rule 8. Rule of Professional Conduct, ( Rule replaced in its entirety by order filed September 29, 2010, effective January 1, 201), <http://www.tsc.state.tn.us/rules/supreme-court/8>.
The Code of Professional Ethics of Lawyers, approved by the General Meeting of the Georgia Bar Association on April 15, 2006, with amendments and additions effected on December 8, 2012.
The Nebraska Supreme Court Сode of Professional Responsibility EC 5-20, (1990, 1995, 2000), 31.21, <https://supremecourt.nebraska.gov/sites/court.cdc.nol.org/files/misc/profresp-31.pdf>.
Virginia Supreme Court Department of Dispute Resolution, Guidelines on Mediation and Unauthorised Practice of Law (UPL), 1999-2000.
Washington Rules of Professional Conduct (RPC), Rule 1.7.
Washington State Bar Association Advisory Opinion №2223, <http://www.wsba.org/Resources-and-Services/Ethics>.
Washington Rules for Professional Conduct, Rule 2.4., Washington State Bar Association Advisory Opinion №2223, <http://www.wsba.org/Resources-and-Services/Ethics>.
572.35 , Effect of Mediated Settlement Agreement, <https://www.revisor.leg.state.mn.us/statutes/?id=572&view=chapter#stat.572.35>.
Abel R.L., Lawyers in the Dock, Learning from Attorney Disciplinary Proceedings, Oxford University Press, 2010, 68.
Anderson D.Q., Litigating Over Mediation- How Should the Courts Enforce Mediated Settlement Agreements? Sing. J. Legal Stud. 105, 2015, 111, 124.
Alfini J.J., Press Sh. B., Stulberg J.B., Mediation, Theory and Practice, Reporter’s Notes, 3rd ed., LexisNexis, 2013, 449, 450-452, 455.
Alfini J.J., Mediation as a Calling: Addressing the Disconnect between Mediation Ethics and the Practices of Lawyer Mediators, South Texas Law Review, Vol. 49, 2008, 830-831, 834- 835, 837, 839.
Brand R.A., Professional Responsibility in a Transnational Transactions Practice, 17, J.L.& Comm., 1998, 301-302.
Burnett C.G., Advising Clients About ADR: A Practical Guide to Having Difficult Conversations About Selecting Options, TSU Alternative Dispute Resolution - Yearbook 2014, Tbilisi State University National Center for Alternative Dispute Resolution, Tbilisi, 2014, 187.
Brooker P., Mediation Law, Journey through Institutionalism to Jurisdiction, Routledge Taylor and Francis Group, London and New York, 2013, 251.
Boulle L., Nesic M., Mediator Skills and Techniques: Triangle of Influence, European Code of Conduct for Mediators , Athenaeum Press, Great Britain, 2010, 415, 418.
Boulle L .J., Colatrella M.T., Picchioni A.P., Mediator Skills and Techniques, LexisNexis, 2008, 104-105.
Burnett C.G., Advising Clients about ADR: A Practical Guide to Having Difficult Conversations about Selecting Options, Ivane Javakhishvili Tbilisi State University National Center for Alternative Dispute Resolution, Alternative Dispute Resolution, Yearbook 2014, TSU Publishing, 2014, 187-199.
Bullen B.A., Mediation, a Training and Resource Guide for the Mediator, Trafford Publishing, United States of America, 2012, 573.
Boulle L., Nesic M., Mediator Skills and Techniques: Triangle of Influence, European Code of Conduct for Mediators , Athenaeum Press, Great Britain, 2010, 426.
Clark B., Lawyers and Mediation, Springe-Verlag Berlin Heidelberg, Glasgow U.K., 2012, 71-110, 179-181.
Chern C., The Commercial Mediator’s Handbook, Informal Law from Routledge, Abindgdon, 2015.
Douglas K., Batagol B., The Role of Lawyers in Mediation: Insights from Mediators at Victoria’s Civil and Administrative Tribunal, 40 Monash U. L. Rev., 2014, 758-792.
Esplugues C., Louis M., New Developments in Civil and Commercial Mediation, Global Comparative Perspectives, Ius Comparatum, Springer International Publishing Switzerland, 2015, 280.
Folberg J., Golann D., Mediation, The Roles of Advocate and Neutral, Wolters Kluwer Law and Business, Aspen Casebook Series, Austin, Boston,Chicago, New York, The Netherlands, 2011, 424-427.
Hughes P., Ethics in Mediation: Which Rules? Whose Rules? 50 U.N.B.L.J., 2001, 251-253.
Hopt K.J., Steffek F., Mediation: Principles and Regulation in Comparative Perspective, Oxford University Press, Oxford, 2013, 156, 268-269, 174.
Kovach K.K., Mediation, Principles and Practice, 3rd ed., Thomson West, United States of America, 2004, 426-427.
State Bar of Virginia, Guidelines on Mediation and the Unauthorized Practice of Law, 1999.
Kovach K.K., Mediation in a Nutshell, 3rd ed., West Academic Publishing, United States of America, 2014, 311, 238-247.
Kovach K.K., Mediation in a Nutshell, United States of America, 2003, 276.
Kovach K.K., Lawyer Ethics in Mediation: Time for a Requirement of Good Faith, 4 Disp. Resol. Mag., 1997-1998, 9-13.
Kvachadze M., Gasitashvili E., Bochorishvili K., Kordzakhia I., Commentary on the Professional Ethics of Lawyers, based on the Practice of the Ethics Commission, EU Project – Supporting the Rule of Law, Tbilisi, 2011, 34, <https://www.tsu.ge/data/file_db/faculty-law-public/lawyers%20book-2.pdf>.
Laflin M.E., Preserving the Integrity of Mediation through the Adoption of Ethical Rules for Lawyer-Mediators, Notre Dame Journal of Law, Ethics and Public Policy, Vol. 14, Issue 1, Art. 14, 2014, 501-503.
Menkel-Meadow C., For and Against Settlement: The Uses and Abuses of Mandatory Settlement Conference, 33 UCLA Law Review, 1985, 503-504.
Moffitt M., Loyalty, Confidentiality And Attorney-Mediators: Professional Responsibility in Cross-profession Practice, 1 Harv. Negot. L. Rev., 1996, 203-204, 206-207, 211.
Meyerson B.E., AAA Handbook on Mediation, 2nd ed., American Arbitration Association, Juris, 2010, 764, Washington State Courts General Rule GR 24, 2002, <https://www.courts.wa.gov/court_rules/>.
Menkel-Meado C., Plapinger E., Model Rule for the Lawyer as Third-Party Neutral, Preamble, CRP Georgetown Commission on Ethics and Standards in ADR, 2002, 3-4, 7, 9-10, 13, 15, 17-19, 21-23,
<http://www.cpradr.org/Portals/0/Third%20Party%20netural%20create%20new%20cover%20page%202012.pdf>.
Menkel-Meadow C., The Silences of the Restatement of the Law Governing Lawyers: Lawyering as Only Adversary Practice, Georgetown University Law Center, 10 Geo. J. Legal Ethics 631, 1997, 641.
Parley L., A Brief History of Legal Ethics, 33 Fam. L.Q., 1999, 637.
Peyerwold D., Mandelbaum M.(ed.), Wage and Hour, Oakland, California, 2016, 13-18.
Pirsig M.E., Kirwin K.F., Cases and Materials on Professional Responsibility, West Pub. Co., 1 Jul 1984, 93.
Roberts M., Mediation in Family Disputes: Principles of Practice, 4th ed., Ashgate Publishing, Dorchester, 2014, 268-269.
Roper I., Mediation, Good Faith, Bad Faith, 40 Alternative L.J., 2015, 50.
Rovine A.V. (ed.), Contemporary Issues in International Arbitration and Mediation, The Fordham Papers 2014, Fordham Law School, Brill – Nijhoff, 2015, 116.
Riskin L.L., Mediation and Lawyers, 43 Ohio St. L.J. 29, 1982, 43-44.
Russel M.O., The Mediation Handbook, Effective Strategies for Litigators, Bradford Publishing Company, Denver Colorado, 2011, 195-196.
Sherill J.A., Ethics for Lawyers Representing Clients in Mediations, 6 Am. J. Mediation, 2012, 29-40.
Shin C.P., Drafting Agreements as an Attorney-Mediator: Revisiting Washington State Bar Association Advisory Opinion 2223, 89 Wash. L. Rev., 2014, 1040, 1042-1043, 1045.
Sharp D., The Washington, D.C. Lawyer and Mediation Confidentiality: Navigating the Complex and Confusing Waters, 7 Appalachian J. L., 2007-2008, 200.
Shapira O., A Theory of Mediator’s Ethics, Cambridge University Press, 2016, 184.
Trevor M.B., Palo G., EU Mediation Law and Practice, Oxford University Press, 2012, 183.
Taylor A., The Handbook of Family Dispute Resolution, Mediation Theory and Practice, Jossey-Bass, United States of America, 2002, 171.
Vettori S., Mandatory Mediation: An Obstacle to Access to Justice? 15 Afr. Hum. Rts. L.J., 2015, 357-359.
Waldman E., Mediation Ethics, Cases and Commentaries, Jossey-Bass, A Wiley Imprint, United States of America, 2011, 340.
Wolski B., On Mediation, Legal Representatives and Advocates, 38 U.N.S.W.L.J., 2015, 5-47.
