Testimony of Prof. Kimberlee K. Kovach
Chair, Section of Dispute Resolution
Montreal, Quebec, Canada
May 29, 1998
As the practice of law evolves, so must the ethical and professional guidelines which govern and shape the parameters of such practice change. It is with that underlying principle that I am here today. The ABA Section of Dispute Resolution, as well as its predecessor Committee on Dispute Resolution, have historically been at the forefront of the field of Alternative Dispute Resolution (ADR). It is logical and appropriate then, that the Section assume a leadership role when examining the precise and specific role of a lawyer in what is often referred to as a non-adversarial process, such as mediation. A role quite different in many respects from that of the traditional adversarial model.
As Chair of the ABA Section of Dispute Resolution, and the Section’s liaison to this group, I will be raising two distinct issues here today for your consideration. The first concerns the duty or obligation of a lawyer to advise his or her client about the availability and use of ADR processes, generally. It seems that such an responsibility could be included as an additional ethical rule or consideration, or in the alternative, as part of the commentary to an existing rule, for example, Rule 1.2 or 2.1.
The other matter is somewhat more complicated and predicated on the premise that mediation is essentially a non (or less) adversarial paradigm for dispute resolution. Therefore, the ABA Model Rules of Professional Conduct which are being examined are likely inappropriate, at best, for guidance for the lawyer’s role and conduct in such proceedings.
I do not plan, at this time, to address ethical considerations or proposed rules for the lawyer when serving as a neutral. For when in the role of mediator or arbitrator, other ethical codes exist which govern that conduct, and the majority of practitioners and academics, and trainers would agree that this in not within the context of the practice of law. Rather, my focus today is on the lawyer when serving in a representative role for a client.
The history of lawyering in the United States and genesis of the Model Rules demonstrate, for the most part, that representation, particularly in matters of resolving existing disputes, are all predicated upon a win-lose dichotomy. The trial process, which serves as the center piece of motion and negotiation practice, is fixed upon the determination of a winner. Sides are polarized, and issues of right and wrong are argued. No room is provided for consensus building, collaborative decision making, or what has been terms "win-win".
While I am not contending that the adversarial court system of dispute resolution upon which we have relied, should be dismantled, I will say that you must recognize the need for, existence, use and growth of other, very different alternative approaches to problem solving and dispute resolution. And, as we explore the different processes, a consequence is a modification of role of the lawyer and corresponding revisions in professional obligations.
Much has changed within the practice of law, and will continue to do so at a rapid rate. Lawyers are asked to do more, and be more, than warriors for their clients in court or court-annexed activities. Many are requested to provide general business advice; others counsel in transactional matters, and in some instances are expected to be general problem solvers. In particular, new processes for problem solving and dispute resolution are included within the context of the lawyer’s work.
Lawyers use rules for guides of their behavior. Rules of procedure - civil and criminal. Rules of evidence. and now , your focus, rules of ethics. Without such rules, many lawyers may not be sure of the expectations or correct conduct in which to engage. Therefore, we propose that you consider the following proposals concerning lawyers obligations and conduct in non/less adversarial procedures.
The first is a requirement that a lawyer must inform his or her client about the existence of ADR processes and procedures. Some states such as Colorado and Texas have already enacted such statements, although for the most part these are aspirational, or alternatively, contain the language, ‘when appropriate’. We also recognize that there currently exists consideration of possible liability for failure to so advise. The Section Council has discussed this proposal and it is recommended for your consideration. That is, that a lawyer be obligated to inform each client about ADR processes.
The second, and perhaps more controversial concerns the lawyers conduct within the context of non-adversarial processes, such as mediation and a problem solving style of negotiation.
A great deal has been done by way of education about ADR, with particular focus on mediation, consensus building and problem solving negotiation as non-adversarial approaches to dispute resolution. Yet, is spite of such education, lawyers continue to be steeped in a win-lose, adversarial effort. They are unfamiliar with non-adversarial paradigms and consequently uncomfortable with ‘foreign’ behaviors and conduct. There have even been attempts, likely implicit as well as explicit to modify these processes to fit within the context of the adversarial system. Consequently what began as alternative to is now being co-opted by, that very process.
While some negotiation, particularly those which occur as adjunct to the litigation process, remain adversarial, and hence covered by Rule 4.1. However, at other times, it may not be beneficial for the client to assume an adversarial posture. For to do so automatically eliminates the opportunity for collaboration. The current rules, which have been interpreted to address the negotiation process also presuppose an adversarial relationship.
If, however, these distinct processes are to survive as truly different paradigms such that we still have an alternative to provide to clients, then we must ensure that the conduct is consistent with the goals and objectives of such processes. This conduct presupposes a non-adversarial approach. A requirement, therefore, of good faith in mediation and in problem-solving negotiation, would likely be beneficial to the process and assist in setting forth the expectations of the lawyer’s role in these processes. As this matter is currently under study by the Section, I have merely included an example of what such a requirement might look like.
The Section, over the next few years will be studying a number of different issues and likely to have additional comments and proposals during the course of your work. However, at this point in time, the work of our Ethics Committee has focused on the two issues I have currently raised in this presentation.
PROPOSALS
PROPOSAL ONE*:
A LAWYER HAS A DUTY TO INFORM HIS CLIENT ABOUT THE EXISTENCE AND AVAILABILITY OF ALTERNATIVE DISPUTE RESOLUTION PROCEDURES.
* APPROVED BY THE SECTION OF DISPUTE RESOLUTION AT COUNCIL MEETING , DENVER, COLORADO, MAY 2, 1998
PROPOSAL TWO**:
PARTIAL DRAFT INCLUDED HERE.
Model Rule for Lawyers Requiring Good Faith Participation in the Mediation Process
Rule 1.7 Good Faith in Mediation
A lawyer representing a client in mediation shall participate in good faith.
(a) Prior to the mediation, the lawyer shall prepare by familiarizing herself with the matter, and discussing it with her client.
(b) At the mediation, the lawyer shall comply with all rules of court or statute governing the mediation process, and counsel her client to do likewise.
(c) During the mediation, the lawyer shall not convey information that is intentionally misleading or false to the mediator or other participants.
**CURRENTLY UNDER STUDY BY THE ETHICS COMMITTEE OF THE SECTION OF DISPUTE RESOLUTION.