On February 4, 1992, the American Bar Association House of Delegates adopted the Report of the Commission on Evaluation of Disciplinary Enforcement (the "McKay Commission"). The Commission was created in February 1989 to conduct a nationwide evaluation of lawyer disciplinary enforcement and to provide a model for responsible regulation of the legal profession into the twenty-first century. Recommendation 3 of the McKay Commission Report called for jurisdictions to expand their systems of lawyer regulation by establishing mechanisms to resolve disputes between clients and lawyers and handle non-disciplinary complaints about lawyers. Mechanisms for fee arbitration, mediation, lawyer practice assistance and lawyer substance abuse counseling were recommended.
In 1996 the Joint Committee on Lawyer Regulation of the ABA Center for Professional Responsibility began drafting model rules for the mediation of complaints against lawyers which alleged lesser misconduct. The Committee reviewed mediation programs and rules from California, Colorado, Missouri, New York and Wisconsin. Additionally, the Committee studied the ABA Model Rules for Fee Arbitration that had been adopted in February 1995 by the America Bar Association House of Delegates. In 1997, the task of finalizing the mediation rules was passed to the ABA Standing Committee on Client Protection. In December 1997 the Committee circulated for comment a draft of the Model Rules to Association entities and judicial and legal organizations across the country. On August 4, 1998, at its Annual meeting in Toronto, the American Bar Association House of Delegates adopted the black-letter of the Model Rules for Mediation of Client-Lawyer Disputes.
The Model Rules for Mediation of Client-Lawyer Disputes are designed to assist jurisdictions interested in implementing a voluntary mediation program. The Model Rules will be subject to modification at the level of local implementation. The Comments do not add obligations to the Model Rules but provide guidance for conducting a mediation program in compliance with the Model Rules.
Mediation is a process by which those who have a dispute, misunderstanding or conflict come together and, with the assistance of a trained neutral mediator, resolve the issues and problems in a way that meets the needs and interests of both parties. Mediation can help to preserve the client-lawyer relationship. For both clients and lawyers, the mediation process is an alternative to litigation or other more formal and expensive dispute resolution mechanisms. The mediation process will benefit the public by directly addressing instances where a lawyer is alleged to have engaged in lesser misconduct but the misconduct does not warrant a formal disciplinary proceeding. The mediation process will also protect the public by removing matters involving lesser misconduct from the disciplinary system and thereby allowing disciplinary counsel to focus their efforts on more serious matters.
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