Mediation Message No. 54

PROPOSED ETHICAL RULE CONCERNING MEDIATORS AND ARBITRATORS

The State Bar’s Special Commission for the Revision of the Rules of Professional Conduct (RRC), which is rewriting California’s Rules of Professional Conduct, has out for public comment eleven proposed ethical rules, one of which (rule 1.12) concerns mediators, arbitrators and former judges. The comment period for these rules ends on November 13, 2009.

California does not have an existing ethical rule for the conduct of mediators and arbitrators although Rules of Court 3.850 et seq. govern the activities of mediators in court-connected mediations. Those rules do not apply to privately retained mediators.

In part, proposed rule 1.12 provides that a lawyer:

• shall not represent anyone in a matter, without the consent of all of the parties, where that lawyer also participated personally and substantially as a mediator or arbitrator (subdivision a) and

• shall not negotiate for employment with a person who is a party, a lawyer for a party or with a law firm for a party in a matter in which that lawyer is participating personally and substantially as a mediator or arbitrator (subdivision b);

• However, a party arbitrator in a multimember arbitration panel is not prohibited from subsequently representing that same party (subdivision e).

Rule 1.12 is not controversial because it merely parallels existing and other proposed rules that protect the acquisition of confidential information, unless the affected parties have waived such confidentiality. (See, generally, Rule of Professional Conduct 3-310.) Also, the rule is directed to part-time mediators and arbitrators who still practice law, and not full-time neutrals such as myself. Nonetheless, any person interested in the subject matter should review the entire proposed rule, which can be viewed by clicking on the “public comment” link on the State Bar’s website and then clicking on the year 2009.

Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067
(310) 201-0010

Copyright Michael D. Marcus, September 2009

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