Ethics in ADR: The Many "Cs" of Professional Responsibility and Dispute Resolution (original) (raw)
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Mediation and the unauthorized practice of law
Conflict Resolution Quarterly, 1989
Like tax accountants and probate court clerks, experienced mediators often know more than the parties about the law and drafting in their areas of specialty. Most mediators are not lawyers.' Thus, their use of this specialized knowledge is restricted by statutes or rules prohibiting practice of law by those not licensed as lawyers (referred to as nonlawyers) in the jurisdiction.2 Several bar association and supreme court committees have issued opinions that characterize the acts of drafting or legal advice by nonlawyer-mediators as the practice of law3 and at least one has asked nonlawyers to cease their mediation-related activities.4 An informal survey of bar counsel indicated at least seven complaints regarding nonlawyer mediators were processed informally, with none resulting in formal charges.5
New Directions for Higher Education, 1980
Efforts at the University of Massachusetts at Amherst illustrate how academic programs such as Legal Studies can form the basis for conflict resolution in the local community as well as on campus. The study of conflict and its resolution lies at the core of many disciplines , but perhaps none touches as closely on this subject as legal studies, the liberal arts study of law in society. Legal studies examines the form and structure of authority in society and the conflicts that authority is expected to resolve. Legal studies also examines the role of officially sanctioned authority in exacerbating conflict. Humanistic, liberal arts legal studies differs considerably from its law school counterpart, the professional study of law. While law school builds its curriculum around the needs of a profession, a liberal arts curriculum operates within a broader context: the study of power and conflict within cultural and historical perspectives. As distinct from a pre-law curriculum, legal studies explores legal issues that arise in connection with the design of public policy and the content of public interest research. Legal studies is not limited to the study of adjudication and adversary processes. It takes these as the dominant themes for conflict management in our society and examines their development and relationship to the structure of society. Official systems of dispute resolution are compared with informal systems, such as the family.
Lawyers speak out on justifying court mediation to their clients
Alternatives to the High Cost of Litigation, 2003
TO THE HIGH COSTS OF LITIGATION NEGOTIATION "Litigants and lawyers can benefit from the development of a somewhat standardized negotiation protocol," writes John Lande of Columbia, Mo. He proposes ways of constructing a protocol, based on collaborative law
ADR and the Professional Responsibility of Lawyers
… Urban Law Journal, 2001
describing the diverse functions performed by lawyers). 4. Warren E. Burger, Isn't There a Better Way?, 68 A.B.A. J. 274 (1982) (suggesting that replacing litigation with arbitration would be a "better way" of resolving disputes). 8. See AM. ARBITRATION Ass'N ET AL.
The articles which follow were prepared for the AALS 2003 Workshop on Dispute Resolution: Raising the Bar and Enlarging the Canon. The committee that planned the workshop sought to explore how the field of dispute resolution (born of courses in negotiation, mediation, and "alternative" dispute resolution) has expanded its focus in the last twenty years, both in disciplinary breath and scope and in subject matters taught. Twenty-one years earlier the first AALS Workshop on Dispute Resolution, held at Harvard Law School, sought to launch the field, define issues for research and exploration, and demonstrate multiple means of teaching its theoretical and practical knowledge for modern lawyers.
2007
Mediation Law and Practice is a comprehensive survey of the place of mediation in the expanding field of alternative dispute resolution. It draws on a rich stock of source materials to explain the philosophy underlying mediation, describe the step-by-step processes involved in its practical application and consider the developing law of mediation. The book is divided into two parts. The first part focuses on what mediation is and how to run it. Touching on the theory and philosophy of mediation, it describes the differences between the emerging models of mediation, discusses the qualities required of a mediator and considers significant issues of gender, culture and power. Finally, this part looks at the importance of ethics and those matters that may be included in a code of ethics for mediators. The second part of the book deals with the developing common and statute law surrounding the practice of mediation. Separate chapters cover mandatory mediation, confidentiality and the enforcement of mediated settlement agreements. There is detailed discussion of statutory schemes, as well as the state's role in mediation. Consideration of mediation clauses-increasingly frequent in contracts today-leads to further discussion of the potential liability of mediators in tort and contract as well as professional responsibility for lawyers acting as mediators. The final chapter looks at the future of mediation in light of the decline in litigation, the rise in regulatory constraints and the growing popularity of online mediation. Providing comprehensive analysis supported by select commentary and materials, Mediation Law and Practice offers fresh perspectives on the practice of mediation for both the student and the experienced practitioner.