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Unethical Practice of Mediation by Attorneys

Unethical Practice of Mediation by Attorneys | PhloxADR

By: Dr. Justin Wood, Th.d, CJME

Preface

Primarily: I am not saying all attorneys who practice mediation are unethical but there are many who clearly violate both mediation and attorney ethics rules. Secondarily: Anyone setting as a mediator must adhere to a guideline of neutrality, ovoid using private and confidential information against a participant, forbid giving legal advice, allow the parties to make their own informed decisions, and contractually disclose their bias to their client. Thirdly: I am writing this at the request of several people, many whom are attorneys, that see this unethical practice and would like to see proper mediation ethics upheld.

Attorney as Mediator Qualifications

Many attorneys will quickly jump at a chance to be a mediator as it was taught in law school and a required course. Other than a few hours course work and volunteering for a state program for a short term, what experience or training do they have as a mediator.

Would you hire any doctor to perform surgery, NO; Yet, surgery is a required medical course. Would you hire any engineer to build a skyscraper, NO; Yet, skyscrape buildings are a part of the engineering course. Would you hire an attorney who does not perform yearly required legal education, NO; You can’t as their law license is suspended. Then why would you hire a mediator who does not comply with statutory mandated legal education (12 OS 1825)?

Attorney Ethical Issues

When I see ethical issues, it normally comes from a party that has hired an attorney to file a law suit against someone else. Somewhere along the way, the attorney sits in as the mediator. How is this Possible.??  A mediator is a third-party neutral who has no personal gain in the outcome and does not have loyalty to either party or the matter-at-hand, and can handle the privacy and confidentiality of BOTH parties.  Where an attorney is the obverse. An attorney is a hired professional who has a duty to represent a party; to which, has the express ethical responsibility to advise, negotiate and litigate in the best interest of that party. This means, if the attorney has information that benefits the client they cannot withhold using this information which would be detrimental to the client.

How can an attorney/mediator not breach their legal ethical responsibility by failing to advise their client? If the attorney/mediator fails to give a client proper legal advice, they breach legal ethics but if they do give the client proper legal advice they breach mediation ethics. If the attorney/mediator gives the opposing party legal advice, then they are breaching both mediation ethics and legal ethics as this could be detrimental to their client.

Another Ethical Breach

I have seen many people duped into going to mediation by another party’s attorney. They have their legal secretary or another attorney at the same firm or close legal colleague sit as the mediator. A mediator must disclose any perceived bias or relationship with any of the parties and the matter-at-hand. How is this possible if the legal secretary owes their job to the firm or attorney? If a situation arises, the legal secretary will side with the attorney who hires them, be stupid if they didn’t. An attorney at the same firm or legal colleague has a relationship with the attorney. That in its self is a conflict of interest.

Ethical Breach Not Allowed

There are professional rules of conduct for attorneys and one said rule governs attorneys who wish to set as a mediator.

Oklahoma Rules of Professional Conduct – Chapter 1, App. 3-A
Client-Lawyer Relationship – Rule 1.12. Former Judge, Arbitrator, Mediator Or Other Third-Party Neutral

.. a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, arbitrator, or law clerk to such a person, or as a mediator or other third-party neutral, unless all parties to the proceeding give informed consent, confirmed in writing.

Most attorneys do not disclose this rule or the subsequent rules of mediation to their client nor the secondary party. This gives the attorney a biased, unrestricted, non-reviewable, clearly deceptive, upper hand in the negotiating process. Furthermore; if no written contract was initiated prior to the mediation disclosing the attorneys bias toward their client, as would be required by statute and rule, this process is impeachable and unethical.

Solution to Unethical Attorney Mediators

After lengthy discussions, it has become clear that an attorney can be a valid and ethical mediator, if certain rules could be followed.

First; the attorney needs to decide: are they an attorney or mediator? Secondly, uphold all mediation ethics and guidelines by disclosing biases, conflicts of interests and legal ethics. Third; an attorney who wishes to be a mediator of a retaining client should: a) Refund all monies obtained from the client, b) Inform the client that further litigation would have to be initiated outside the firm without referral. This allows the attorney to practice law as they were educated and upholds all professional ethics and upholds the quality of the dispute resolution process.

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August 22, 2019

Better Dispute Management

By: Dr. Justin Wood, Th.d., CJME

I see many businesses and people get into heated legal battles over disputes that could be resolved. One of the worst is procrastination. Waiting till the small issue has risen into a major problem. Ignoring things and hoping they will go away does not always work, in fact, it normally makes matters worse.

Better Dispute Management

When an argument, issue or dispute has arisen, the best thing you can do is quickly move to a system that allows controls to manage the situation. We see this every day in law enforcement, universities, theme parks, etc. They quickly start down a pathway of “what level of response” is necessary. Not every issue rises to the point of calling a meeting or stopping production but a dispute management system that is easily remembered, fast to implement, scalable and one that can be deployed in every situation is the best option. No one wants to stop and deal with something unsettling but allowing problems to build can be costly.

Why Handle Disputes Quickly

In the historical perspective, disputes were considered a matter of life and death when not handled properly. Someone could challenge you to a duel, turn everyone buying your product against you, have you excommunicated or even executed by the authority. OUCH.!! But, is it any different today.??

Customers and employees are the killer of most businesses today. With social media so widely acknowledged, it doesn’t matter if “you’re not on Facebook”, they are.! One quick post can be seen by hundreds or thousands of people following or in a group. Picket lines can start in front of your business OVERNIGHT from an unresolved sexual harassment claim. What customer or vendor will cross through that angry mob to enter your business.?  Again, with social media the norm, they don’t want their face, business vehicle or signage associated with your problem on the 6 o’clock news or all-over social media.

Businesses that have heated disputes have shown a 20% employee loss within days. Why? They don’t want to deal with the stress or be associated with whatever is going on either. Think about a real good employee that just had a child. They are not sleeping due to home stress, being up all night, they may have stress at their college studies, they may be dealing with an insurance claim from an accident but when they get to work, EVEN more stress. Now they don’t know if the business will survive and worry about their next badly needed paycheck. So, which one of your competitors is hiring.?

Biblical Dispute Resolution

In the Bible, there is a clear and precise outline of how to resolve disputes in Matthew 18:15-20. This starts out very simple and scales to allow for more complex, stubborn or critical matters. The top tier is all private and confidential and everyone is under a formal agreement not to disclose matters.

  1. Start off with a private negotiation, one-on-one. Pull people aside and see what is going on, what’s happened, where the issue arose. The earlier you do this, the more accurate the information and the less distorted the facts. Now, negotiate to fix the issues. Agree to talk with the person making the offense, move people around, change schedules, have a relaxed Friday, etc. Your creativity allows you to make the greatest impact. If this does not work, advance.
  2. Bring in a neutral, unbiased person to mediate the issues. A quality trained and credentialed mediator can be invaluable to your business. This can be done after hours, in-person, virtually (online) and does NOT have to rise to the level of a legal complaint. Nip-it-in-the-bud.! Let the involved parties come to an agreement where the mediator can write up a formal memorandum ending the dispute. The parties involved are in control of the process and the agreement, so, the mediator is facilitating and controlling the process in a fair manner. If this does not work, escalate.
  3. Select a neutral unbiased arbitrator to end the dispute. Arbitration is just like Judge Judy (commonly known as a private judge) that listens to the information, hears witnesses, etc. and makes a final award to how the dispute will be ended. Again, this does NOT have to come to the point of a legal dispute before you can implement an arbitration. Many businesses use this “mediation to arbitration” escalation to end matters before they reach a legal climax. Lastly, if they will not abide by the award or not agree to participate (this method needs to be written in your agreements, handbooks and contracts) then your left with the last option.
  4. You must higher legal counsel and proceed to court litigation. This is the costliest, most time consuming and stress inducing process to resolve a dispute. Not to mention, you lose all control in the process and privacy / confidentiality just went out the window, opening you up to bad word of mouth, scathing social media posts and group boycotts.

Final Thoughts

When you implement the Biblical Dispute Resolution model, you save time wasted on legal motions and waiting for court hearings plus the time wasted on stress and fighting, you save money spent on legal counsel, court filings and loss of production and customers, you save stress by not having troubles at work and at home, where you can avoid all the nail biting, social media posts and negative publicity.

Remember, set a plan in place that is easy to remember, fast to implement, scalable and can be deployed in every situation. Having a plan like Biblical Dispute Resolution that has been around for millennia, seriously, can save you time, money and stress.

If I can be of assistance to you or your company, please feel free to reach out. I am glad to discuss matters free of charge for up to 45 minutes and help you implement any dispute resolution necessary.

Free Personal Conversation

We are here to help answer questions, explain anything and  see what is right for you.  We offer you a conversation, not a sales pitch via email, text, phone, Facebook Messenger, Skype or Video conference.  This can be just you or include your spouse, other parties, etc., you tell us what is more comfortable.

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Online Dispute Resolution ODR | PhloxADR
May 9, 2019

What is Online Dispute Resolution (ODR)?

By: Dr. Justin Wood, Th.d., CJME

What is Online Dispute Resolution - ODR

Online Dispute Resolution (ODR) is not a new concept but one that is gaining ground and traction throughout the world. Today, we handle most of our business and interactions via digital media or through digital devices, so, it is a clear evolution to handle our disputes through this same methodology.

ODR is a process of resolving complaints, disputes and even legal matters through the digital world without all the travel, parking, walking through crowded courthouses or being searched by ever pawing law enforcement for the smallest theoretical weapon.

By eliminating the three to six hours of your day waiting for a judge to listen to your case for the bewildering two and a half minutes before making a ruling and keeping matters between the disputing parties; has proven in various surveys to make for better rulings.  Just look at eBay, Wal-Mart.com, Amazon, PayPal and the other large digital marketplace giants; they all use ODR, so, imagine having a dispute with eBay and having to travel to the small claims court in “whatever” state they wish to claim is headquarters. Not a pretty thought.

Who Can Benefit?

Anyone who has an email, access to the internet and a valid identification can benefit from this digitized dispute resolution process. People from all walks of life have turned to ODR for the clear benefit of having time to explain their case, not being rushed, because there are 100 cases behind them that day and not having to be a legal juggernaut or hire ever more expensive legal representation.

Many States (Virginia, Florida, California, etc.) are working on eCourt systems for their small claims process and have started many pilot programs throughout the United States. Europe and Asia have been using eCourt and ODR services for decades where this has expanded into the International Court, where businesses and people with limited resources have found it to be vastly superior.

Residents in rural areas and the disabled (physical and emotional) can find ODR as their superior choice for dispute resolution as their limitations are not a factor. When being shuffled into large courthouses the emotionally stressed get confused and on occasion aggravated, making them seem aggressive to judges. The physically restricted have difficulties navigating the tight quarters, limiting elevators and physical searches they must endure. 

ODR is not bound to a certain state or district but is performed throughout the United State and abroad into most any county. There are no restrictions on where the ODR service or where the professional must reside. This allows you to pick the very best person to handle your situation.  

How Does ODR Work?

Disputes handled online take various avenues and have multiple venues from mediation to arbitration and even conciliation or a complete encompassing claims resolution. This gives the parties options on how they want their dispute resolved. They can seek help and advice to find a solution or have a neutral mediator assist them in negotiating to an amicable conclusion or the parties may wish to have a final binding ruling eliminating the need to come to an agreement.

When you open an ODR case, you interact the same as purchasing a product online. You input your information and the responding party’s information, then proceed to checkout. Once this information is reviewed by the coordinator, you will be sent a link or login to input the rest of your case and claim. All parties do the same and the case is resolved by an ADR professional who is accustomed to the ODR format.

Pitfalls of ODR

Some companies, ADR professionals and attorneys are rushing to the ODR field leaving parties in the middle to figure out the system. This is the problem with the legal industry as it sees participants as parties not customers. PhloxADR has a different view, as we see them as customers needing a positive consumer experience.

Ethics is the next hurdle as there are factors that only exist in ODR. Some of these factors are: Maintaining privacy and confidentiality, proper identification, good faith representation and a quality process. When you jump into a market you have little training and almost zero understanding will definitely be a detriment to the consumer.

Lack of software functionality is the one that leaves most people hating the process. Again, legal and ADR professionals must have a level of computer intelligence above the average consumer. Without this knowledge, they fail to understand the complexity of the software, dangers of back-stream messaging and leave sessions open for hacking or recording.

What ADR Processes Can be ODR

Any ADR (Negotiation, Facilitation, Conciliation, Mediation or Arbitration) can be used in an ODR process from an experienced and qualified provider. The process works seamlessly when the proper techniques have been applied.

Depending on the  provider, the software used should allow for both conference and caucus to provide for group and private conversations to facilitate the best possible ODR process. Another important feature should provide for private online conversations with party members and/or their advisers and legal counsel. This is all possible with the proper product and provider. 

Best Options for Choosing an ODR Professional

When you are choosing who is best to perform your ODR service, do some research. Do they understand computer software and hardware, are they experienced with their platform, can they explain the process to you without having to get others involved?

Lastly and one I cannot stress enough. Does the ODR professional have current and reoccurring training? Ask for their list of training for the last year or what memberships they have which qualify their training. When they can neither provide that nor their certificates, they are not performing due diligence in their profession and performing a disservice to you.

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We are here to help answer questions, explain anything and  see what is right for you.  We offer you a conversation, not a sales pitch via email, text, phone, Facebook Messenger, Skype or Video conference.  This can be just you or include your spouse, other parties, etc., you tell us what is more comfortable.

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December 22, 2018

ABA 2011 Resolution 108

American Bar Association (ABA)

2011 Resolution 108

In 2011, the American Bar Association (ABA); the general authority and standard for the practice of law, law school credentialing and leading authority of law with the the United States, entered a resolution to find more peaceful means to resolve disputes.

Approved by:
The Section of Dispute Resolution Council
April 13, 2011.

Adopted by:
The House of Delegates
August 8-9, 2011

Approved and Adopted

Part 1 of 4 (RESOLVED), That the American Bar Association affirms the principle of civility as a foundation for democracy and the rule of law and urges lawyers to set a high standard for civil discourse as an example for others in resolving differences constructively and without disparagement of others.

Part 2 of 4 (FURTHER RESOLVED), That the American Bar Association urges all lawyers, ABA member entities and other bar associations to take meaningful steps to enhance the constructive role of lawyers in promoting a more civil and deliberative public discourse.

Part 3 of 4 (FURTHER RESOLVED), That the American Bar Association urges all government officials and employees, political parties, the media, advocacy organizations, and candidates for political office and their supporters, to strive toward a more civil public discourse in the conduct of political activities and in the administration of the affairs of government.

Part 4 of 4 (FURTHER RESOLVED), That the American Bar Association supports governmental policies, practices, and procedures that promote civility and civil public discourse consistent with federal and state constitutional requirements.

Meaning of Resolution 108

The general meaning behind 2011 Resolution 108 is that the American Bar Association that we must seek out more civil means of resolving disputes and that attorneys and law schools take steps to to promote “more civil and deliberate” ways to resolve disputes. Generally, speaking this is negotiation, conciliation and mediation.

That the ABA urges, is you understand the power of the ABA urge is a strong word, all government, employees, officials, political offices, etc. to themselves find these methods and to put policy and procedure into place to make this happen.

The Actual PDF of 2011/108

Click the link to read the ABA 2011 Resolution 108 for yourself.  <<Click Here>>

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