Ethical Issues in ADR

I. Ethical Responsibilities for Counsel

1. Have principals personally attend the hearing; (including insurance representatives in mediation) consult with principles during the process and allow the Neutral to consult with the principles (in presence of attorney) as well.

  • All Parties are obligated to attend a court-ordered mediation (California Rule of Court 1634; Los Angeles Superior Court Local Rule 12.15) unless the defendant is fully covered under an insurance policy, which gives the insurer right to settle without consent of the insured. (Fiege v. Cooke, et al. (2005) 125 Cal. App. 4th 1350)

2. Do not misrepresent the facts of the law to the mediator.

  • Business & Professions code 6068 (d);Rule of Professional Conduct 5-200 (B)

3. Ex-Parte communications with the mediator ARE permitted.

  • The Rule of Professional Conduct 5-300(B) & the California Rule of Court 379 Do not apply since mediation is based on Ex-Parte communication.

4. Multiple Clients must consent to aggregate settlements.

  • An attorney who represents more then one party may not, pursuant to California Rule of Professional Conduct3-310(D), enter into an aggregate settlement of a claim without the informed written consent of each client.

II. Ethical Responsibilities of the Neutral

1. A Neutral must be impartial.

  • A neutral must maintain impartiality towards all parties involved in the mediation at all times. (California rule of court 1620.5(a); [all the rules of court concerning mediations apply only to court ordered mediations].)
  • Neutrals should not have any substantial business or personal relationships with any of the parties and have a duty to disclose potential areas of conflict that might affect their neutrality. (Rule of Court 1620.5(b).)
  • Neutrals should also disclose any relationships, business or personal with expert witnesses in Arbitration. . (Rule of Court 1620.5(b).)
  • California Code of Civil Procedure 1281.9. (a) In any arbitration pursuant to an arbitration agreement, when a person is to serve as a neutral arbitrator, the proposed neutral arbitrator shall disclose all matters that could cause a person aware of the facts to reasonably entertain a doubt that the proposed neutral arbitrator would be able to be impartial

2. Fairness of proceeding vs. Outcome of proceeding.

  • Each party is given an opportunity to participate and make un-coerced decisions (Rule of Court 1620.7(b).)
  • In mediation however, the mediator is not obligated to ensure the substantive fairness of an agreement reached by the parties (Rule of Court 1620.7(b).

3. The Mediator may not share information gained in private caucus without
the expressed consent of the party giving the information.

  • The mediator can provide the parties with an opportunity to disclose confidential information, which the mediator will continue to keep confidential and only reveal to the other side if the disclosing party requests or gives permission to the mediator.

III. Ethical Responsibilities of ADR Providers

1. Ensure fairness during the coordination of the hearing

  • Not unilaterally setting a hearing unless its court ordered.
  • Using a fair process (ie.a random strike/rank list) when assisting in selecting a neutral.
  • Copying all parties on documents, notices, etc.
  • Making sure the party submitting any motions, briefs or documents has copied opposing counsel. (For Arbitrations and Private Judging matters)
  • Reviewing briefs, documents, letters BEFORE they are given to the Neutral to avoid ex-parte communication.
  • Encouraging conference calls with the parties and the Arbitrator to resolve any pre-arbitration issues.

2. Disclosure reports in Arbitration, and Private Judging matters.

  • California Code of Civil Procedures1281.92. (a) No private arbitration company may administer a consumer arbitration, or provide any other services related to a consumer arbitration, if the company has, or within the preceding year has had, a financial interest, as defined in Section 170.5, in any party or attorney for a party.
  • 1281.96. Any private arbitration company that administers or is otherwise involved in, a consumer arbitration, shall collect, publish at least quarterly, and make available to the public in a computer-searchable format, which shall be accessible at the Internet Web site of the private arbitration company.

3. Perception of Bias in the Arbitrator selection process.

  • Not suggesting the same Arbitrators for every case.
  • How can Judicate West help to neutralize the process of presenting your list to the other side?

IV. Update on Confidentiality

1. Foxgate Homeowner's Association v. Bramalea California, Inc. (2001) 26 Cal. 4th 1
2. Rojas v. Superior Court (2004) 33 Cal. App. 4th 407
3. Morgan Phillips, Inc. vs. Jams/Endispute (2006) CAAPP2 Docket No.-
4. Wimsatt v. Superior Court 152 Cal.App.4th 137, Cal.Rptr.3d

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