Rule 1 - General Principles and Jurisdiction
A. Definitions.
- A "Client" means a person or entity who directly or through an authorized representative consults or retains a lawyer in the lawyer's professional capacity.
- "Commission" means the Client-Lawyer Mediation Commission.
- "Lawyer" means any lawyer admitted to practice law in [name of jurisdiction], including any formerly admitted lawyer, any lawyer specially admitted by a court of this jurisdiction for a particular proceeding and any lawyer not admitted in this jurisdiction who practices law or renders or offers to render any legal services in this jurisdiction.
B. Establishment; Purpose.
It is the policy of the [highest court of the jurisdiction] to encourage the informal resolution of disputes between lawyers who practice law in [name of jurisdiction] and their clients. To that end, the [highest court of the jurisdiction] hereby establishes through adoption of these rules, a program for mediation of client-lawyer disputes. The program includes mediations referred by [the lawyer disciplinary agency] and voluntary mediation requests made by the client or by the lawyer, if both the client and the lawyer agree to mediate.
C. Jurisdiction.
- Any lawyer is subject to these rules for mediation.
- The Commission has jurisdiction over disputes that involve lesser misconduct or no misconduct on the part of the lawyer and appear to be resolvable by mediation.
- The Commission has jurisdiction over disputes referred by [the lawyer disciplinary agency] and voluntary mediations in which a lawyer or client requests mediation and the other party agrees.
Comment
The mediation program described in these rules is part of this jurisdiction's comprehensive lawyer regulatory system. The comprehensive system includes: [a lawyer discipline and disability system, a client protection fund, mandatory arbitration of fee disputes, mediation, law office management assistance, and lawyer assistance programs].
Since mediation is a process that works by building consensus and agreement, the mediation process can preserve existing client-lawyer or other fiduciary relationships by allowing both sides to air their grievances and work together on a solution agreeable to all parties. When handled by a skilled mediator, the process can be simple and efficient, saving time and money for both parties. The lawyer's willingness to have a third party assist in resolving the dispute can demonstrate to the client that the lawyer's intention is to act in the client's best interest.
Mediation is not suitable when the dispute involves an allegation of lawyer misconduct, which, if true, would warrant a sanction restricting the lawyer's license to practice law. Mediation is appropriate when the dispute involves no allegation of lawyer misconduct or an allegation of lesser misconduct as defined in [jurisdiction's rules of disciplinary enforcement]. It is appropriate because there is little or no injury to a client, the public, the legal system, or the profession, and there is little likelihood of repetition by the lawyer.
Examples of disputes that might be referred to mediation include allegations of a lawyer's failure or refusal to return a client's file based on a fee dispute with the client, release a lien on a client's recovery in a case in which the lawyer has been succeeded by another lawyer, withdraw from representation upon being discharged by the client, conclude a legal representation by preparing an essential dispositive document, such as the findings of fact and conclusions of law in a divorce or the final account in an estate, return an unearned fee or a portion of the fee, comply with his or her agreement with a medical provider on the client's behalf or communicate concerning the status of a matter.
Other examples of situations in which the parties might agree to voluntary mediation could include allegations of a client's failure to pay or fulfill the contract, pay for costs (including future costs) or communicate with the lawyer.
The primary purpose of the program is to resolve complaints referred from the jurisdiction's lawyer disciplinary agency. Therefore, such referrals should be given priority over voluntary mediations.
Mediation can be used to complement fee arbitration proceedings. The Commission may accept jurisdiction in a dispute in which a fee arbitration proceeding is pending but has not yet begun. The intention is to solve the dispute in a less formal way, if possible, not to refer complainants back and forth between the two programs.
Next - Rule 2 - Mediation Commission