Ethics and the attorney as mediator or third party neutral

I.

INTRODUCTION

The use of mediation and other alternative dispute resolution (ADR) [i]modus operandi[/i]s has increased dramatically over the years. Lawyers, justices and the parties involved in a dispute should all be aware of the advantages and disadvantages of the different modes available. This article provides a commentary upon mediation, including the efforts to revise the Uniform Mediation Act, the ethical issues affecting third party neutrals, whether the use of ADR processs constitutes the practice of law, and the part of the attorney as a third party neutral.

II.

THE MEDIATION PROCES

Mediation is a non-binding, confidential dispute resolution proces before individual or more third party neutrals. Individuals and entities generally participate in mediation upon a voluntary basis in order to analyze their dispute through nonbinding negotiations with the assistance of a third party neutral. Experienced lawyers and non-lawyers are privately retained to labor for as mediators and neutrals. more [i]or[/i] less organizations also maintain a roster of family trained in dispute resolution. All of these individuals are experienced in using way s of conciliation to aid parties in adjustment or other mutually acceptable resolution of a dispute.

Alternate dispute resolution way s are used to resolve a variety of disputes. Examples include disputes between employer and employee insurer and insured, health provider and patient, manufacturer and customer, professional and client, insurer and reinsurer. Contract issues and disagreements with management agencies are also properly make subordinate to ADR methods.

Many court a whole s sanction both voluntary and compulsory mediation programs that use the services of a lawyer as the third party neutral. In commercial disputes many non-lawyers, by dint of virtue of their education, training, and life or work experiences, are picked to serve as neutrals. Many courts favor the use of ADR way s to reduce court congestion and to assist parties in reaching a faster and usually more economical resolution to their dispute. However, objections have been lodg against non-lawyer neutrals who participate as mediators in court-related dispute resolution proceedings. This issue was the control of study by the American Bar Association's Section of Dispute Resolution in 1999 That research resulted in the following resolution:

The section of dispute resolution has noted that many court joined ADR programs and other dispute resolution programs have restricted participation to neutrals who are lawyers. The section believes that the eligibility criteria for dispute resolution programs should permit all individuals who have the appropriate training and qualifications to labor for as neutrals, regardless of whether they are lawyers.'

Ill.

UNAUTHORIZED PRACTICE OF LAW

In the case of Birbrower Montalbano Condon & Frank v Superior Court,2 the California leading Court addressed the issue of unauthorized law practice by the agency of unlicensed lawyers during ADR proceedings. Birbrower Montalbano, a of recent origin York law firm, was retained to exhibit a California client during California arbitration proceedings. The firm was unlicensed in California. The court determined that the firm could not get back payment of its fees for services performed in California because its management constituted the unlawful practice of law. The Birbrower decision, however, stands in sharp contrast to the decision in Williamson v John D Quinn Construction Corp.3 In Williamson, the novel York federal court held that a novel Jersey law firm, though unlicensed in novel York, could collect fees for its legal representation of a client during a novel York arbitration.

The conflict between these legal decisions emphasizes the care that attorneys must take while engaged in administration that might be considered "legal" in nature. Meeting with a client or witnesses, providing advice above the phone, or even sending a fax that contains legal advice when the attorney is not licensed in the jurisdiction could be problematic. Unles the particular jurisdiction has decided the issue, it is difficult to predict the directions of engagement in ADR cases. The use of a non-lawyer neutral in mediation could be challenged upon grounds that the neutral has engaged in the unauthorized practice of law. If that come into views the results are not clear. beneath the circumstances, it would be prudential for both the non-lawyer mediator, as well as the lawyer mediator, to avoid any activity that might be constru as legal in nature for a like reason as to precipitate sanctions.

Conflicting case law upon these issues often occurs because there are differing views as to whether arbitration constitutes a "legal proceeding." If it is not, participation as an arbitrator or party representative should occasion no issue about the unlicensed practice of law. However, vexed question situations may arise as a spring of conduct that is tantamount to the practice of law, of that kind as preparing a document intended to be binding upon the parties and filed in court. In light of the holding in Birbrower, the parties can single speculate about international implications. It is questionable, for example, by what mode the California courts might interpret a similar situation involving international arbitration beneath the InterAmerican Convention on International Commercial Arbitration. If individual party elected to be showed by a non-lawyer and the other party retained an unlicensed out-of-state attorney, would the treaty provisions "trump' the California state licensing dominions governing the practice of law?