Acts Like a Lawyer, Talks Like a Lawyer…Non-Lawyer Advocates Representing Parties in Dispute Resolution

(Excerpt) What are the ethical implications for lawyer mediators, arbitrators and dispute resolution providers when the lines between the roles of lawyers and the non-lawyers who are representing clients in dispute resolution become blurry? Traditionally, non-lawyer advocates (hereinafter NARs) have represented clients in the negotiations, mediation and arbitration of legal matters without cause for concern. Yes, labor union representatives, sports agents, and special education advocates are three familiar examples of non-lawyers who represent clients in negotiations, mediations and arbitrations, informing clients of their legal rights. Routinely, the lawyers and neutrals presiding over the dispute resolution procedure have warmly welcomed these non-lawyers, viewing these non-lawyers as valued participants who provide their clients beneficial subject matter expertise to help resolve the legal dispute at hand. However, that welcome has now turned tepid and tentative as FINRA and its neutrals question the ethics of some of those non-lawyers who are representing clients in FINRA arbitration

We Can Work It Out: Entertaining a Dispute Resolution System Design for Bankruptcy Court

On October 2, 2009, dispute resolution scholars and bankruptcy court jurists courageously began the difficult conversation about the feasibility of an expanded dispute resolution system design for bankruptcy court. This commentary distills that conversation through a dispute resolution system design lens. Dispute resolution system design offers a framework for organizations to more effectively manage and resolve recurring conflicts. The design of a dispute resolution system requires clarifying ideas, elucidating values, prioritizing goals, considering options and incorporating that information into a more workable process to respond to conflict. All the while, the stakeholders and dispute resolution designers work together to clarify, prioritize and mediate which values will shape the design of the dispute resolution process. For those inevitable times when doubts emerge and commitment waivers, participants might be inspired by the supportive mantra, “We Can Work It Out.

High Anxiety: Racism, the Law, and Legal Education

Conspicuously absent from the United States’ ongoing discourse about its racist history is a more honest discussion about the individual and personal stressors that are evoked in people when they talk about racism. What if they got it wrong? The fear of being cancelled -- the public shaming for remarks that are deemed racist -- has had a chilling effect on having meaningful conversations about racism. What lost opportunities! This paper moves this discussion into the law school context. How might law schools rethink their law school curricula to more accurately represent the role systemic racism has played in shaping the law while still respecting community members’ different perspectives about racism pedagogy? As in our broader society, law school community members’ fear of “getting it wrong” and possibly being cancelled has had a chilling effect on having candid conversations about racism within legal education and the law. In this discussion, the author prescribes one of the first dispute system frameworks for implementing pedagogy on racism in law school, highlighting the different racial stressors ignited in doctrinal, clinical, skills, and experiential learning classes. The dispute resolution system is built on a restorative justice framework and draws on an interdisciplinary understanding of the physiology and psychology of racial stressors. Building on that knowledge, the paper explains how racial stressors, if constructively addressed, can actually enhance learning about racism and better prepare law students for real-world practice

Up Close and Personal: Whether or Not You Decide to Report a Confidentiality Exception

(Excerpt) In your role as lawyer or neutral, have you ever reported an otherwise confidential communication because it was one of these permissible confidentiality exceptions? Why? This column will discuss how our ethical and personal considerations shape our decisions as advocates and dispute resolution professionals about whether to report ethically permissible exceptions to confidentiality. Readers, you are invited to rethink your ethical reporting obligations and develop more self-awareness about your personal rationales for your reporting choices

Two for the Price of One Is a Costly Choice: The Ethical Issues for Lawyer-Mediators Who Consider Drafting Agreements

(Excerpt) Should a lawyer who serves as a mediator for two unrepresented parties also draft the resulting agreement if both mediating parties request the lawyer to do so? On June 30, 2010, the ABA Section of Dispute Resolution Committee on Mediator Ethical Guidance (hereinafter “The Committee”) issued Ethics Opinion SODR-2010-1 “Mediator’s Duty of Care When Drafting Agreements.” This ethics opinion calls into question the blurry ethical contours between lawyering and mediation when mediating with pro se parties. In this column, I will review the Committee’s ethics opinion and then, applying the New York Rules of Professional Conduct, discuss the potential ethical minefields and workable alternatives for those New York lawyers who serve as mediators and also contemplate drafting the resulting agreement

Overcoming Our Global Disability in the Workforce: Mediating the Dream

The unparalleled global support for the 2008 United Nations Convention on the Rights of Persons with Disabilities ( CRPD ) highlights the global schism between the public extolling of human rights for individuals with disabilities and the private castigating of such individuals in their daily lives and in the workforce. The CRPD explicitly mandates that work is a right accorded to individuals with disabilities, and global employers are now being challenged to implement that right. Yet, in order to ensure meaningful, universal compliance with its directives, the CRPD imposes affirmative duties on Supporting States to develop a customized, workable plan that effectively addresses the biases about individuals with disabilities in the workplace. Among the recommendations to achieve meaningful compliance, the CRPD advises Supporting States to modify their existing mediation and conciliation programs within their human rights institutions to meet the CRPD imperative. To meaningfully implement the CRPD, Supporting States must address the attitudinal biases that abound against individuals with disabilities, especially among employment recruiters, employers, employees, and even lawyers representing aggrieved clients, all individuals who are instrumental in implementing the CRPD mandates. Unless these biases in all their cultural variants are addressed, enforcement efforts, such as the establishment of mediation and conciliation programs, will be neutered. This Article focuses on the challenges of designing such effective, culturally sensitive mediation and conciliation programs to resolve global workplace discrimination against individuals with disabilities. Part One explains the CRPD and its mandates, focusing on its workplace imperatives. Part Two illustrates the scope and magnitude of the discrimination through harrowing statistics. Part Three highlights how Supporting States must address the gap, in all its cultural variants, between the global, public support for the CRPD and the more private societal and personal biases towards individuals with disabilities. Part Four offers the ideological, functional, and cultural considerations to be incorporated when adapting responsive mediation, conciliation, or any facilitated negotiation forums to mediate workplace disputes arising out of the CRPD. Part Five concludes with a summary of the salient points Supporting States need to address to help make the CRPD\u27s aspiration a meaningful reality

What Sally Soprano Teaches Lawyers About Hitting the Right Ethical Note in ADR Advocacy

(Excerpt) Paradoxically, when lawyers opt to mediate or arbitrate, lawyers may still wind up selecting, shaping and advocating in these dispute resolution processes to resemble the very litigation process they have sought to avoid. After all, litigation likely comports with the lawyer’s own conflict style, comfort level and concepts of justice. As a consequence of this litigation bias, we see that the metaphorical doors of a multi-door courthouse that once offered a menu of dispute resolution choices are increasingly leading us back to one choice: a variation of the litigation door. Even though the Model Rules of Professional Conduct confirm that a lawyer’s litigation preference may be within ethical parameters, this practice may, at times, directly contravene his client’s interests. Let me explain

The Unintended Consequence of Settlement Fever and the Rule of Law

(Excerpt) Welcome to the final column of a three-part series about how settlement fever has influenced our justice system as it evolves into settlement-centric culture. This column will focus on how the rule of law, once touted as the primary benchmark of justice, has now taken a secondary role to private ordering when shaping some negotiated and mediated settlements

Show Me the Money: Part One

(Excerpt) Until now, the discussion of how to ethically monetize “the value added” that settlement savvy attorneys bring to the client has been one of the few remaining taboos that is rarely, candidly discussed among lawyers. How should settlement-proficient lawyers calculate the value of efficient, quality outcomes? How does a lawyer who bills by the hour ethically deal with the inherent conflict of interest between his desire to make as much money as he can and the economic disincentive to be settlement proficient? What are some creative billing incentives to more closely align the clients’ desire for contained legal costs with a lawyer’s desire to be fairly compensated for the value he adds for efficient, quality settlements? Especially during these constricted economic times, when consumers of legal services are scrutinizing more than ever the value of legal services, this conversation invites a timely re-consideration of different, more creative billing paradigms beyond the “hourly billing.

Ethical Compass: Celebration

(Excerpt) Let’s raise our glasses to toast our esteemed Chief Judge, the Honorable Janet DiFiore, for making Presumptive ADR a central part of the New York Office of Court Administration’s civil case management. In her February 26, 2019 State of the Judiciary Address, Chief Judge Janet DiFiore announced that the New York Office of Court Administration is formally adopting Presumptive ADR. Although all ADR processes such as settlement conferences, negotiations, arbitration and early neutral evaluation may be used to help settle cases, a focus will be on mediation. Presumptive ADR will apply to almost all civil cases filed in New York Supreme, Civil and Surrogate Courts or NYC Civil Court