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March 08, 2021

Richard Zitrin RE: Distinctions Between Mediators & Arbitrators - Center for Professional Responsibility


I would treat mediators and arbitrators the same, apply DQ to law firms, and not allow screening. Screening sets up an inherently unfair situation for the non-client whom the screen gets around.  Because anyone can be an arbitrator, and arbitrators are not under the same rigorous rules of ethics as judges (nor do they necessarily have any training), I believe they should be treated as other neutrals, in a separate rules, with meditors.

When it comes to the duty of candor, I think it matters whether it's an arbitration, in which 3.3 applies in that the arbitration is similar to a trial, with a trier of fact, and a mediation, which is merely (I use the word advisedly, since I'm a firm believer) a negotiation with a facilitator.  No more than 4.1 should be required in mediation. But my general comments go to the fact that I am troubled by requiring candor in negotiations and "finessing" the issue by saying that statements of value, for example, are not material. I would rather simply exempt negotiations. But I would *not* impose a restrictive definition on candor in *mediation*, even if court-ordered. Arbitrations, however, should require the same 3.3 candor as trials.


This is not adequately dealt with by rules governing neutrals. There are no uniformly accepted disclosure standards. There are SPIDR standards, a few state standards, AAA standards, etc. But there is no discipline mechanism or uniformity of enforcemnet or even requiring adherence. At least when it comes to lawyer-mediators, uniformity will only be achieved by a rule discussing the extent of disclosure.


(1) DEFINITIONS: I neither see the purpose of these definitions, since the rule does not separate out the various categories, nor agree with the categories chosen. I believe this is far too complex for lawyer rule drafting. Lawyer rules should categorize neutrals as arbitrators and mediators, period. Further slicing and dicing will only serve to further complicate an already-complicated area.

(2) ASSUMPTION OF NEUTRALS in "NON-REPRESENTATIVE" CAPACITIES: I think it's a *big, big* assumption to presume, as the preamble seems to, that neutrals are acting in a non-representational capacity. For instance, when a so-called evaluative mediator is providing "evaluative tasks, such as providing legal information, helping parties and their counsel assess likely outcomes...." this may well be representation if the parties are not otherwise represented, as sometimes occurs in domestic cases (or in mediations I do where a lawyer or firm in a fee dispute is representing him/her/itself.)

Gary Friedman, dean of domestic mediators, once told me for an article that it made little difference whether the mediator involved with unrepresented parties is deemed to be representing the parties. He said that "lawyers care about this distinction, but not mediators." Yet he drafts the marital settlement agreements. (Emerging Ethical Issues in Mediation, California Lawyer, April 1992.)

I know we have MR 2.2, but I don't think it's enough. The Commission can make a decision not to deal with the issue of representation (Lord knows you've bitten off an ambitious piece of work as it is), but I continue to believe it begs a fundamental question. The Georgetown treatment of the issue is, to me, an ostrich-like approach. I'd like to see your rule (or series of rules) step up and attempt to clarify the issue.

My own belief, BTW, is that Friedman *does* represent those clients. I think amplifying 2.2 is well worth the effort.


As my original comment to you implies, I believe that any disclosure [here embodied in Georgetown rule 4.5.3 (1)(A)] should include prior work as a neutral. Consideration should be given to requiring some information about the neutral organization's prior use as a neutral, though this, as my original comment suggests, is a difficult issue. Law should also be included, and part (D) of the Georgetown rule, referring to emplyer, partners, and business associates, should specifically refer to law firms, which are the most likely entities. A specific decision should be made about whether (D) refers to the neutral agency itself.


In Georgetown Rule 4.5.4(2)(A), I would not permit screening within law firms, for reasons previously articulated.

Richard Zitrin
Univ. of San Francisco School of Law
c/o Zitrin & Mastromonaco, LLP
445 Bush Street, Suite 600
San Francisco, CA 94108
Telephone: (415) 864-5959
Facsimile: (415) 732-7555
e-mail: [email protected]

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