Mediator Ethical Guidance Committee Update

Members of the Mediator Ethical Guidance Committee will present various scenarios that have been considered by the Committee, and the process by which the scenarios are evaluated and opinions issued. The program will discuss how the work of the Committee fits in within the other ways by which practitioners get ethics opinions (Model Standards, Provider Guidelines, statutes, etc. We will discuss the kinds of topics that come before the Committee including prior scenarios and more recent issues of interest in the mediation community, presented in a Q & A format.

Kimberly Taylor, JAMS, New York, NY


What Do Ethics Have To Do with It? Perspectives on Ethical Issues

The presentation features different perspectives on ethics in securities arbitration and mediation from a regulator, a professor of DR and Ethics, a neutral, and an advocate. The program will use case studies with ethical issues for arbitrators, mediators and attorneys which will be distributed in the class materials and shown during the presentation on a Power Point projector. The format will consist of a moderator  conducting a facilitated discussion of each case among the panel and attendees and reviewing the appropriate rules, and cases where applicable.

Phil Cottone, Mediator - Arbitrator, Malvern, PA
Ken Andrichik, NASD, New York, NY
Jill Gross, Pace Law School, New York, NY
Sandra Grannum, Davidson & Grannum LLP, Orangeburg, NY


Lying, Misrepresenting, Puffing: Ethical and Professional Standards for Negotiators and Mediation Advocates

This program will discuss legal, ethical and professional standards for negotiators, advocates in mediation and mediators in the context of realistic hypothetical situations.  Presenters will focus on best practices and distinguish among legal issues, ethical standards (the Model Rules of Professional Conduct) and professional obligations to which advocates and neutrals should aspire.  Our audience will be involved in evaluating and resolving legal, ethical and professional issues embedded in the hypothetical scenarios.  Interactive discussion will explore the ability to achieve good outcomes for the parties within these ethical and professional standards.

James Lawrence, Frost Brown Todd LLC, Cincinnati, OH
Michael Lewis, JAMS, Washington, DC
William Leahy, Mediator and Adjunct Professor at Case Western Reserve School of Law, Shaker Heights, OH


Fiduciary Duties: Imagined or Real?  Doesn't Somebody Have a Fiduciary Duty Here?

The growth of the dispute resolution field has yielded a variety of procedural and substantive issues. When a disputant participates in a dispute resolution process, whose responsibility is it to ensure that the disputant understands the relevant law and process and the neutral's role boundaries? Even though research has clearly established the importance of being heard, who is responsible for defining what this means in a particular procedure and ensuring it occurs? Qualitative research interviews with mediation participants suggest that at least some disputants leave the process confused, dissatisfied and perceiving procedural injustice. This session will consider whether someone should bear an explicit fiduciary duty to ensure that disputants receive sufficient preparation to fully participate in these processes. If so, who should it be?

Jacqueline Nolan-Haley, Fordham University School of Law, New York, NY
Nancy Welsh, Pennsylvania State University, University Park, PA
Bobbi McAdoo, Hamline University School of Law, St. Paul, MN


Keepin' the 'Good Faith': Global Perspectives of this Obligation in Negotiation/Mediation

This interactive panel will survey the global landscape in assessing the worldview of a requirement of good faith in negotiation, and mediation, as assisted negotiation. While the United States has historical eschewed such a requirement, and in fact, an ABA Section of Dispute Resolution does so as well, such a requirement is commonplace in most other jurisdictions. To the extent that mediators and lawyers engage in global deals and disputes, awareness and understanding of this obligation is critical. The program will examine the current requirements, legal and theoretical underpinnings and thereafter discuss and debate the practical applications and implications. It is intended to be the beginning of a much needed dialogue.

Kimberlee Kovach, South Texas College of Law, Austin, TX
Yael Efron, Zefat College School of Law, Zefat, Israel, Israel
Hal Abrmason, Touro Law School, New York, NY
Eric Galton, Lakeside Mediation Center, Austin, TX


Arbitration Ethics: Practical (and Ethical) Solutions to Real Problems

Ethics issues are complex and potentially dangerous.  The arbitrator or advocate who is facing such an issue must reconcile conflicting interests and do so in a way that is ethical, fair and practical, all at the same time.  This is a daunting task.  This program will feature three experts who deal with ethical issues on a day to day basis for three major arbitration organizations, AAA, CPR and JAMS, who will discuss the ethical, and practical, guidelines they use to navigate successfully through these issues to solutions.  An academic expert in the field will participate to weigh in on these issues, and the practical approaches used, as well.

Sheri Eisner, JAMS, Los Angeles, CA
Eric Tuchmann, American Arbitration Association, New York, NY
Helena Erickson, CPR, New York, NY


Maintaining Impartiality and Avoiding Conflicts of Interest: Same or Different?

Most major mediation ethics codes treat Impartiality and Conflict of Interest as two separate concepts. Why is this?  Doesn't the duty to be and remain impartial encompass the duty to avoid conflicts of interest? If so, why do our codes pretend otherwise? This panel will examine whether our codes suffer from a basic conceptual infirmity and whether, as a practical matter, mediators are paying sufficient attention to either requirement. We will discuss the ethical propriety of many practices, including: a) streamlining administrative concerns by declaring in a generic agreement to mediate that the mediator enjoys repeat business with insurance adjusters and attorneys and  b) advertising subject matter expertise without disclosing whether one worked primarily for the plaintiff or defense side and without disclosing subject matter bias.

Ellen Waldman, Thomas Jefferson School of Law, San Diego, CA
Susan Nauss Exon, University of La Verne, Ontario, CA
Jeff Kichaven, Jeff Kichaven Mediation, Los Angeles, CA
Wayne Thorpe, JAMS, Atlanta, GA