Mediator v. Arbitrator: Disclosure and Other Ethical Issues

Mediator v. Arbitrator: Disclosure and Other Ethical Issues Panel: A. Stephens Clay, Kilpatrick Stockton, LLP Jeff Kichaven, Independent Mediator Dr. Karl J. Mackie, Centre for Effective Dispute Resolution Moderator: MaryBeth Wilkinson, Lovells LLP

Scenario: Mediation of Class Action • Defendant agrees no objection to Class Counsel Fee Application • Settlement on “claims made” basis with potential reversion to defendant • Mediator asked for “Fairness Declaration” (re: absent class members) • Ethical to so swear ?

CPR Mediation Procedure • Ground Rules (3)(j) • Unless agreed in writing…mediator disqualified as a “witness, consultant or expert” in pending or further action relating to subject matter • Confidentiality (9) • Unless agreed, mediator shall not disclose (including to any judicial officer) any information regarding the process…

What Do We Value In Mediators? • Evaluative vs. Facilitative

What Do We Value In Mediators? • Evaluative vs. _________

What Do We Value In Mediators? • Evaluative vs. Skilled

What Do We Value In Mediators? • ________ vs. Skilled

What Do We Value In Mediators? • Status vs. Skilled

What Do We Value In Mediators? The “Status” Mediator

What Do We Value In Mediators? The Skilled Mediator

The Mediator’s Skill • Creating an environment in which participants can achieve results they never before imagined.

Scenario: Free Labor? • Is it ethical for CPR Members to ask a Mediator to work for free? • Form – CPR Model Agreement – (D) Compensation • “The Mediator shall be compensated for time extended in connection with the Proceeding at the rate of $_____...”

Scenario: Mediator then Arbitrator? • CPR Mediation Procedure • (3) Ground Rules • (K) “…the mediator shall not serve as an arbitrator unless the parties and the mediator otherwise agree in writing”

Scenario: Mediator then Arbitrator? • CPR Code of Ethics for Arbitrators in Commercial Disputes • Comment to Canon 1 • “…Arbitrators do not contravene this Canon if, by virtue of such experience or expertise, they have views on certain general issues likely to arise in the arbitration, but an arbitrator may not have prejudged any of the specific factual or legal determinations to be addressed during the arbitration.”

CEDR CEDR Rules for the Facilitation of Settlement in International Arbitration www.cedr.com

Scenario: Hanky Panky on Arbitration Panel • CPR Code of Ethics for Arbitrators in Commercial Disputes • Note on Neutrality: “This Code expects all arbitrators…to preserve the integrity and fairness of the process.” • Canon 1 (D) “Arbitrators should conduct themselves in a way that is fair to all parties…” • Canon 1 (H) No withdrawal “unless compelled to do so by unanticipated circumstances that would render it impossible or impractical to continue…”

Scenario: Hanky Panky on Arbitration Panel • CPR Code of Ethics for Arbitrators in Commercial Disputes • Canon VI (B) “The arbitrator should keep confidential all matters relating to the arbitration proceedings and decision…” • Canon VI (C) “…it is not proper at any time for an arbitrator to inform anyone about the substance of the deliberations…”

Scenario: Allegations of Bias & Threatened Litigation • CPR Mediation Procedure • Ground Rules (3)(m) – No liability except “willful misconduct”

Scenario: Allegations of Bias & Threatened Litigation • CPR Mediation Procedure • Form – Future Relationships (C)(2) – Mediator will not work for or against a party for six months after serving.

Thank you!

Mediator Training Interview with US District Judge Barbara Rothstein (W.D. Wa), Director of the federal Judicial Center. The Federal Lawyer, October, 2009 Q: Many newly appointed federal judges have had no previous experience on the bench. Does the FJC have any programs that can help them make the transition from practitioner to judge? If so, what is the focus of these programs? A: Yes, we invite new district, bankruptcy, and magistrate judges, respectively, to attend two orientation seminars during their first year on the bench: (1) a seminar held for small groups of new judges and (2) a program for groups of about 30 judges at our education center in Washington, D.C. The curriculum differs, of course, for each type of judge, but in general the seminars focus on acquisition of skills unique to judging: trial management, calendar management, judicial ethics, opinion writing, and, for district judges, the criminal sentencing process. Substantive law covered during the orientation process is limited to complex areas of statutory and constitutional law that arise frequently in federal litigation (such as employment discrimination and habeas corpus for district and magistrate judges).

Mediator Training Q: Your Education Division provides continuing education for judges. What kind, and where does this training take place? A: Most education programs for judges are presented in person in order to facilitate discussion. We develop our programs and written materials in consultation with advisory committees of judges, and we emphasize practical skills and new developments in the law. In addition, every 12 months, we conduct a series of national or regional workshops for district, bankruptcy, and magistrate judges, respectively. National programs for appellate judges are held every three years. These programs cover a broad range of legal topics and judicial skills, usually including new legal developments, case management techniques, updates on ethics, and less traditional subjects such as legal history or science and technology. We also conduct annual programs for chief district judges on leadership and management. The Federal Judicial Center offers smaller seminars in such fields as intellectual property, employment law, environmental law, and law and technology, as well as a skills-based program in mediation. These two- to three-day programs are presented to district and appellate judges, bankruptcy judges, or magistrate judges at locations around the United States, often in cooperation with law schools and other institutions.

Definitions • Learning Curve • Frequently a "learningcurve" is used to describe the effort required to acquire a new skill (e.g., expertise with a new tool) over a specific period of time. If it's a complex task requiring you to reorient your way of thinking as with learning new software, what makes it a "steep learning curve" is the mental strain of comprehending a new language rather than the time or physical effort involved. The effort to achieve significant progress and sufficient skill to start using a tool may be fairly predictable, but achieving real mastery requiring much more time, effort and making original discoveries about its use. Often learning brings one to an "impasse", only resolved by a seemingly radical intuitive change in direction, an "ah-ha moment" or "breakthrough" representing "S" curve learning of a different kind and on a different scale. (Wikipedia, Learning Curve, http://en.wikipedia.org/wiki/Learning_curve , emphasis supplied.)

Definitions • Sunday Driver • – noun, a person who drives a car inexpertly, esp. slowly or overcautiously, in the manner of one who drives infrequently. (Dictionary.com)

Mediator v. Arbitrator: Disclosure and Other Ethical Issues