September 24, 2013 Articles

Disqualifying Post-Med-Arb-Med Conduct by Neutral Does Not Unwind Signed Settlement Agreement

By J. Gregory Whitehair

The monitoring and regulation of mediators and arbitrators is a haphazard business in the United States. It is often said that "mediation is not the practice of law"—despite how often mediators are asked to help parties navigate contentious and confusing legal issues—so many states, such as Colorado, do not regulate the conduct of neutrals, even for court-annexed mediation. This is a convenient determination for the neutrals as it avoids the credentialing and regulatory schemes routinely applied to attorneys, sidesteps the unauthorized practice of law (UPL) rules, and arguably moots the need for malpractice insurance. Parties harmed by unregulated neutrals may, however, question the public protections of this laissez-faire approach.

Even in states that provide some guidelines for neutrals handling court-connected dispute resolution, such as Alabama and Michigan, the system of oversight is almost always less developed than that found for lawyer regulation. For instance, there is no recognized "mediation malpractice bar" and often no grievance-and-discipline procedure. (Florida presents a special case, using an elaborate credentialing point system that reflects education and experience, and provides a detailed disciplinary procedure.)

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