Model Rules for Mediation of Client-Lawyer Disputes - Rule 4

RULE 4 - THE PROCESS

A. Commencement of Mediation.
(1) Referral from Lawyer Disciplinary Agency. Within [15] calendar days after receipt by the Commission of a mediation referral from [the lawyer disciplinary agency], the Commission shall mail to both the lawyer and the complainant a copy of these rules and an agreement to mediate, together with a notice that shall include the name, address and telephone number of the mediation program and the date on which the referral for mediation was received. If the signed agreement to mediate is not returned to the Commission by both parties within [30] calendar days of mailing, the Commission shall close the file, notify the parties that it is closing the file because one or both parties failed to return the agreement, and inform the [lawyer disciplinary agency] of the identity of the party or parties who did not consent to mediation.
(2) Voluntary Mediation. Within [15] calendar days after receipt by the Commission of the approved written application for voluntary mediation of a dispute and a signed agreement to mediate, the Commission shall notify the other party of the request and shall forward to that party an agreement to mediate, together with a copy of these Rules and a copy of the written application. If the signed agreement is not returned to the program by the other party within [30] calendar days of mailing, the Commission shall close the file and notify the requestor that the other party did not consent to mediation.

B. Assignment of Mediators.
The Commission shall notify the parties of the assignment of a mediator within [15] calendar days after receipt of the fully executed agreement to mediate. The notice shall include the name, address and telephone number of the mediator assigned. The mediator shall be assigned at random from the available pool of qualified individuals. Upon withdrawal or removal of a mediator, the Commission shall notify the parties within [10] calendar days of the name, address and telephone number of a new mediator.

C. Mediation Hearing Date.
Within [15] calendar days after the date of mailing of the notice of the assignment of a mediator, the mediator shall arrange a mediation conference date which shall be scheduled to take place within [30] calendar days after the assignment notice mailing date, unless both parties to the mediation agree to a longer date. The mediator shall promptly notify the parties and the Commission of the place, date and time of the conference.

D. The Conference.
(1) Only the parties to the mediation, their lawyers, if any, and the mediator are required to be present during the mediation, but the mediator shall have authority to determine if others may be present at and participate in the mediation.
(2) The mediator shall have the authority to meet separately with the parties.
(3) If all parties and the mediator agree, the mediation may be conducted by telephone. In cases of hardship, the mediation may be conducted by telephone at the discretion of the mediator even if all parties do not agree.
(4) If upon completion of the mediation, the parties have an agreement, the mediator shall reduce the agreement of the parties to writing. The parties shall sign as many originals as there are parties to the mediation. A copy of the signed agreement shall be made for the Commission's records. The mediator shall report to the Commission on the Mediation Summary Report form, which will indicate if the dispute was resolved, was not resolved, or did not proceed because a party did not appear (with an indication of which party did not appear). Such agreement and/or report shall be submitted within [15] calendar days after the conclusion of the mediation.
(5) In the case of any mediation referred from the disciplinary agency, the following materials shall be transmitted to the [lawyer disciplinary agency] at the conclusion of the mediation:
a. A duplicate original of the signed mediation agreement described in Rule 4.D.4 above; and
b. the completed Mediation Summary Report form.

Comment

The overwhelming majority of complaints made against lawyers allege instances of lesser misconduct. Summary dismissal of these complaints is one of the chief sources of public dissatisfaction with the lawyer regulation system. These cases seldom justify the resources needed to conduct formal disciplinary proceedings and should be removed from the disciplinary system and handled administratively.

The mediation program established by these rules is designed to receive cases from a number of sources: the central intake office; the disciplinary agency; other agencies within the lawyer regulation system; the courts; or directly from the parties. Referrals from the disciplinary agency will usually be part of a diversion program or an agreement in lieu of discipline, in which a lawyer agrees to mediate a dispute with the understanding that the disciplinary matter will be dismissed upon successful completion of the mediation. Agreement of both the client and the lawyer is required for a matter to be referred to mediation from the disciplinary agency. Matters that come to the mediation program from the central intake office, other agencies, or directly from the parties are voluntary as described in these rules.

The mediator is authorized to determine the rules by which the mediation will proceed. The mediator should conduct the conference informally. At the outset, the mediator should make clear to the parties that the mediator is serving as a mediator and not a judge. The mediator's role is to facilitate communication and suggest ways of resolving the dispute; the mediator is not to impose a settlement on the parties. The mediator should make every effort to hear all the relevant facts, review all the relevant documents, become familiar with any controlling legal principles and seek to bring about an acceptable compromise between the parties. The mediator should make sure that any proposal offered for resolution of the matter is clearly understood by the parties and perceived to be fair.


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