Vol. 31, No. 1, #3. Ethically Speaking - An Attorney's Duties Regarding ADR, Including Mediation and Intermediation.

• Author: Author: John M. Burman

Wyoming Bar Journal

2008.

Vol. 31, No. 1, #3.

Ethically Speaking - An Attorney's Duties Regarding ADR, Including Mediation and Intermediation

Wyoming Bar Journal Issue: February, 2008 Author: John M. Burman Ethically Speaking - An Attorney's Duties Regarding ADR, Including Mediation and Intermediation

Those of you who attended law school more than a decade or so ago never heard the acronym "ADR" or the word "mediation" until it was suggested as a means of trying to resolve a dispute between our client and another party. The initial reaction of many of us was to hide our ignorance behind an assertion that "this case isn't appropriate for ADR or mediation." But the issue kept recurring, with increasing frequency, sometimes from clients and sometimes from judges, and so we had to learn about mediation so that we could advise clients about whether it might be appropriate, and so we could participate competently in the process when it became inevitable. Alternative Dispute Resolution

Now, mediation, or some other form of alternative dispute resolution ("ADR"), is mandatory in some jurisdictions for some kinds of cases. In addition, advising a client about the possibility of ADR is expressly required in some states, such as in Colorado. Even in states such as Wyoming where there is no express requirement, there may well be an implied requirement because lawyers generally, including those in Wyoming, have the duty to "explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation:" The reason for discussing ADR given such a rule is simple. A client cannot make an "informed decision" without knowing about his or her options, including the option of trying some form of ADR. And since a "reasonable lawyer" would advise a client of the information necessary to permit the client to make an informed decision, including the option of trying ADR, a Wyoming lawyer has both an ethical and a legal obligation to provide such information.

Until the recent amendments to the Wyoming Rules of Professional Conduct ("the Rules"), they were silent on the ethical duties of a lawyer acting as a mediator between two or more non-clients. As discussed below, the Rules have long addressed a lawyer's ethical obligations when acting as an intermediary between clients, but that is a fundamentally different role. Now the Rules discuss a lawyer's duties when serving as a mediator (a "third-party neutral" in the parlance of the Rules).

The acronym "ADR" has crept into the legal lexicon. "ADR" means, of course, "alternative dispute resolution." The question that the use of ADR logically raises is alternative to what? The answer is all forms of dispute resolution which do not go to trial. One common method of ADR is mediation.

What Is Mediation?

ADR, of course, includes many alternatives other than mediation. They run the gamut from settlement of a case, with the parties often acting through their lawyers, to arbitration, in which one or more third parties make a decision that is generally binding on the participants and may be conducted pursuant to formal rules and procedures, such as those of the American Arbitration Association (AAA), which resemble civil litigation in the judicial system. "Mediation" falls somewhere in the middle:

Mediation is the intervention into a dispute by an acceptable, impartial, and neutral third party who has no authoritative decision-making power to assist disputing parties in voluntarily reaching their own mutually acceptable settlement of issues in dispute.

Since mediation is voluntary, it can be conducted pursuant to whatever rules or procedures the parties choose. Accordingly, "[w]hether a third-party neutral serves primarily as a facilitator, evaluator, or decision-maker depends on the particular process that is selected by the parties or mandated by a court."

While mediation varies significantly, depending on the desires of the parties, it invariably involves "facilitated negotiation," in which a person trained as a mediator tries to help parties to a dispute reach an agreement. Because it is, ultimately, based on the agreement of the parties, it is, by definition, non-binding. The parties...