Ethics in Alternative Dispute Resolution DR170
ADR is no longer a risk-free environment for mediators and other neutrals. As codes of conduct and grievance processes proliferate, and second-guessing and litigation increase, neutrals must be better aware of ethical dilemmas they will face. This course employs presentations, exercises, and moderated discussions of real-world cases to improve ADR neutrals’ ethical awareness and their competency to deal with sticky ethical situations in real time.
- Potentially relevant professional standards and other authorities
- Steps in identifying and effectuating evenhanded, defensible responses to tough cases that minimize harm to the parties, to the process, and to the role of the neutral
- Understanding the critical role of context and party expectations: How variations in ADR settings have an impact on neutrals' conduct
- How outcomes may vary under potentially relevant legislation, rules, and other authorities
Neutrals' Roles and Conduct
- Neutrality, conflicts, and competence
- Evaluation by mediators
- Separating mediation from counseling and legal advice
- Preventing abuse of ADR processes
- Impact on third parties of agreements negotiated in ADR
Self-determination: When does encouragement become coercion?
- What do we mean by party self-determination?
- Given differences among cases and clients, how do we know when neutrals’ interventions and strategies cross the line of coercing clients to reach agreements?
- What do we mean by "confidential" as regards parties and neutrals?
- What exceptions exist? What information may (or must) a neutral divulge to judges or others?
- Explaining confidentiality clearly and establishing realistic party expectations
- Handling demands or requests for confidential information
Putting it all together: Ethics in day-to-day practice
- Best ethical practices for neutrals and program administrators
- Using available tools (disclosure, questioning) to shape expectations and handle or avoid problems
- Neutrals' liability for ethical lapses
- Grievance mechanisms, advisory processes, and other measures taken by various jurisdictions to promote ethical behavior
- ADR program ethics: Administrators' roles and responsibilities
- Recent developments (Revised Joint Standards of Conduct for Mediators; ACR Ethics Training Resources initiative; ABA guidance on confidentiality)
Robert L. Douglas, is an Attorney, Mediator, and Arbitrator. He has a B.S. from the NYS School of Industrial and Labor Relations at Cornell University; a J.D. from Hofstra Law School, where he served as the Managing Editor of the Law Review; and an LL.M. in Labor Law from the New York University School of Law. He has over thirty five years of experience in dispute resolution (mediation and arbitration) in workplace disputes in the public and private sectors throughout the United States and also has mediated commercial disputes. He served as an Assistant Dean and Special Professor of Law (in Dispute Resolution, Employment Law, Labor Arbitration, Labor Law, and Sports Law) at the Hofstra University Law School from 1982-1994. He taught courses in business subjects at LaGuardia Community College and has experience as an Apprentice Electrician in Local 3 IBEW and the NYC Construction Industry. He frequently teaches arbitrator ethics for the American Arbitration Association, Cornell University, and professional organizations. He has published articles about arbitrator ethics and about remedies for violations of the National Labor Relations Act, as amended. He is a member of the National Academy of Arbitrators and of the New and District of Columbia Bars.