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Archive for the ‘Ethics’ Category

Should There be an Ethical Obligation for Mediators to Support Transparency?

Jennifer Shack, March 22nd, 2019

I’m doing something different this month. Instead of summarizing empirical research or an evaluation, I’m discussing an article that presents an argument for mediators to be more transparent about the mediations they conduct and calls for a new standard for compulsory mediation that is mandated by the court or required by a contract of adhesion (e.g., a consumer or employment contract). The article is the start of a conversation, with many questions to be addressed, such as what exactly constitutes measured transparency, and how confidentiality and transparency can be balanced.

In her article, “Dispute Resolution Neutrals’ Obligation to Support Measured Transparency” (Oklahoma Law Review, Vol. 71, No. 3, 2019), Nancy Welsh argues that transparency is needed regarding the use and outcomes of dispute resolution processes in order to protect the public and the integrity of the processes. Further, according to Welsh, the neutrals themselves have an ethical responsibility to support that transparency. This is particularly true when parties don’t have a choice (or their choice is limited) but to participate in these processes.

Since Welsh focuses on mediators in her article, I will as well. First, though, let’s talk about what Welsh means by transparency. Although Welsh doesn’t state exactly what she means by the term, it appears from her examples that transparency is the provision of enough information about the use and outcomes of a process that the public can have confidence in that process and parties can make informed decisions. The information provided should also allow for empirical research and systematic analysis to be done, which can point to best practices and enlighten the public as to the effectiveness of the process.

To illustrate what this information might be, she points to the data released by the Nevada Supreme Court regarding the compliance of lenders with the foreclosure mediation program’s statutory requirements. She also highlights the opportunity that the RSI/ABA Model Mediation Surveys pose for gathering standardized participant feedback and mediator reporting.

Noting that the courts and arbitration organizations publish more information about the cases they hear than is generally available for mediation, Welsh points to reasons mediators should be more transparent. First, as with arbitration, parties are often compelled to mediate, from mandatory mediation in the courts to contracts of adhesion that include a mediation requirement. When processes are imposed upon parties, there is a greater responsibility to ensure that the processes are fair and effective, particularly when there is limited judicial review of the outcome, as with mediated settlements. Transparency helps to ensure that, according to Welsh: More information about mediations can help to equalize the knowledge of one-shot users and repeat players, allow for public oversight, and make it less likely that mediators would engage in unethical behaviors. It would, therefore, provide potential users with greater confidence in the usefulness and integrity of the process.

For these reasons, Welsh argues that a new set of standards for compelled mediations is the best option. Because these mediations are the ones that are most in need of transparency, a set of standards specific to them is warranted. As Welsh notes, a customized standard “would acknowledge that mediation occurring pursuant to mandates by courts, legislatures, or contracts of adhesion is different, and that its circumstances require a heightened level of public accountability.”

This article highlights a trend that is coming to the fore in other areas of dispute resolution. As dispute resolution processes, in particular arbitration, have become not only more routine but also more often required, calls for – and requirements for – transparency have followed. Welsh notes that confidentiality has become the hallmark of mediation. For the sake of self-determination and process integrity, she argues that the veil of confidentiality needs to be pierced, in a measured way, to make more information available to users, researchers and courts.

Big News in Court ADR — A Look Back at 2014

Just Court ADR, December 18th, 2014

Our monthly e-newsletter Court ADR Connection has updates on RSI’s activities, cutting-edge ADR research, and the latest court ADR news from across the country. As we wind down 2014, I thought it might be fun to take a look at a few of the most significant news stories we reported on this year.

Detroit Bankruptcy Mediated in “Grand Bargain”

The most-watched court ADR news story of 2014 may have been the mediated settlement that resolved the City of Detroit’s municipal bankruptcy. Without doubt, this riveting drama of competing interests coming together to form a “Grand Bargain” will be studied and discussed for years to come. We reported on facets of this story a few times, both here in our blog and in our newsletter: (more…)

Grievance Procedures and Mediation Policy Goals

Jennifer Shack, August 6th, 2014

Here’s something I wrote for RSI’s e-newsletter this month that I thought would interest our blog readers as well:

Parties to court mediation in Florida have the opportunity to submit their complaints regarding a mediator to a robust grievance process. The structure includes four stages: committee review to determine whether a complaint is facially sufficient; a preliminary review of rules that may have been violated and the mediator’s response to the complaint, which are used to determine probable cause; a meeting between mediator and complainant; and a formal hearing.  In “Mediator Ethical Breaches: Implications for Public Policy” (Penn State Yearbook on Arbitration and Mediation, Vol. 6, p. 107 (2014)), Sharon Press examines this grievance process and finds that the burden of proof required at the formal hearing stage has the potential to undermine the policy goals of mediation programs. (more…)

Settlement Conferences and the Price of Contempt

Just Court ADR, May 27th, 2014

In a settlement conference, what is the value of having someone present with full authority to settle? If one party lacks the authority, it can result in aggravation, wasted court fees, and lost time for trial preparation. American Family Insurance (AFI) recently learned this to their cost in a dog-bite case in Washoe County, Nevada. Because Judge Janet Berry did not believe the insurers had complied in good faith with her rules on authority to settle, she found the company in contempt and sanctioned them $50,000. (more…)

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