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Full-Text Articles in Law
Ethical Problems In Class Arbitration, Andrew Powell, Richard A. Bales
Ethical Problems In Class Arbitration, Andrew Powell, Richard A. Bales
Journal of Dispute Resolution
This article examines two significant conflicts of interest that arise in class arbitration in six parts. Part II provides background on the recent evolution of class arbitration, explaining how the Supreme Court had decided several cases involving class arbitration but has not explicitly ruled that class actions are either permitted or forbidden. Part III discusses the conflicts of interest that could arise at the beginning of class arbitration. Part IV discusses conflicts of interest that arise at the end of class arbitration. Part V of this article argues that if and when Congress amends the Federal Arbitration Act to statutorily …
Ethical Considerations In Drafting And Enforcing Consumer Arbitration Clauses, Amy J. Schmitz
Ethical Considerations In Drafting And Enforcing Consumer Arbitration Clauses, Amy J. Schmitz
Faculty Publications
Attorneys face mixed messages regarding consumer arbitration: Mixed professional responsibility rules; mixed legal enforcement; mixed messages from commentators and policymakers; mixed evidence regarding efficiency, cost-savings and fairness. It is therefore doubtful that attorneys would face discipline for drafting or enforcing onerous consumer arbitration provisions they believe in good faith to be lawful. Professional discipline rules, however, merely set the floor for ethical conduct and can only go so far in dictating morals or teaching values. Indeed, an attorney's commitment to ethics and public service "must begin at home." Moreover, the bottom line is: "If you have the wrong values, your …
Ethics Of Collaborative Law, The, Scott R. Peppet
Ethics Of Collaborative Law, The, Scott R. Peppet
Journal of Dispute Resolution
This article argues that Collaborative Law can be permissible under the current rules of legal ethics. At the same time, it contends that this is not a foregone conclusion, and that certain Collaborative Law contracts or arrangements are more suspect than others. In short, it argues that collaborative lawyers need to be extremely careful in how they go about their practice if they wish to withstand ethical scrutiny.
How Can A Mediator Be Both Impartial And Fair: Why Ethical Standards Of Conduct Create Chaos For Mediators, Susan Nauss Exon
How Can A Mediator Be Both Impartial And Fair: Why Ethical Standards Of Conduct Create Chaos For Mediators, Susan Nauss Exon
Journal of Dispute Resolution
This article focuses on newly developing Standards designed to regulate the mediation industry with respect to civil disputes. The particular focus is on the mediator's requirements of neutrality and impartiality and whether these requirements are impacted by assurances of a fair result and other fairness concepts such as a balanced process and informed decision making. The basic problem is that mediators are guided by Standards and stand-alone definitions of mediation, yet many Standards contain contradictory or vague provisions. Furthermore, the mediator's actual role may be dictated by her own personal style, values, and commercial needs in conjunction with the parties' …
New Era Of Disclosure: California Judicial Council Enacts Arbitrator Ethics Standards - Ethics Standards For Neutral Arbitrators In Contractual Arbitration, A, Keisha I. Patrick
New Era Of Disclosure: California Judicial Council Enacts Arbitrator Ethics Standards - Ethics Standards For Neutral Arbitrators In Contractual Arbitration, A, Keisha I. Patrick
Journal of Dispute Resolution
Although the current CJC ethics rules consist of seventeen standards and several subsections "intended to guide the conduct of arbitrators, '17 this Note will focus only on the disclosure requirements. The Note will also compare the CJC standards with disclosure rules that provider organizations have previously enacted.
Ethics: No One Ever Said It Would Be Easy: Bush's Contribution To Mediation Practice, Albie M. Davis
Ethics: No One Ever Said It Would Be Easy: Bush's Contribution To Mediation Practice, Albie M. Davis
Journal of Dispute Resolution
The beauty of Robert Baruch Bush's research on ethics is that his conclusions grow out of the real life experiences of mediators.' Yes, his interpretation is influenced by his own biases, and yes, the Florida mediation scene, where he made his observations, is not a microcosm of the rest of the nation or the world; nevertheless, in spite of these limitations, he did a remarkable job of capturing the dilemmas that most mediators face.
Easier Said Than Done: Resolving Ethical Dilemmas In Policy And Practice, Linda Stamato
Easier Said Than Done: Resolving Ethical Dilemmas In Policy And Practice, Linda Stamato
Journal of Dispute Resolution
This is not to argue against core principles. There is, I think, a consensus on these: responsible and fair dealing, disclosure of personal conflicts, good faith, diligence, impartiality, confidentiality, and, certainly, honesty and integrity. I take these ethical requirements to be the sine qua non of professional mediation practice; the primary representations to be made prior to, and, indeed, to be adhered to in the course of mediation. SPIDR attempted to codify these values in its Ethical Standards of Professional Responsibility, which were adopted by the SPIDR Board in 1986 and confirmed in 1991. What we in mediation practice are …
Study Of Ethical Dilemmas And Policy Implications, A, Robert A. Baruch Bush,
Study Of Ethical Dilemmas And Policy Implications, A, Robert A. Baruch Bush,
Journal of Dispute Resolution
This paper is based on research sponsored by the National Institute for Dispute Resolution and by Hofstra University School of Law. The research involved interviews with roughly eighty mediators working in one of the three areas mentioned above. The mediators were asked to identify situations they had experienced in mediation that, in their view, raised difficult ethical dilemmas on which they felt the need for guidance by professional standards and program policy. This report summarizes and illustrates the findings of the research as to the major types of dilemmas practicing mediators are confronted with and analyzes these dilemmas and their …
Ethical Dilemmas Or Benign Neglect, Richard A. Salem
Ethical Dilemmas Or Benign Neglect, Richard A. Salem
Journal of Dispute Resolution
But, the real message of this study is that guidance for mediators facing ethical dilemmas is long past due. The Florida mediators, as might have been anticipated, are encountering a number of ethical problems that are familiar to mediators elsewhere and that are endemic to practicing in this field. But, as Professor Bush suggests, the interviews indicate that some of the problems confronting Florida mediators result from their being placed in the untenable position of not being provided with: (1) sufficient policy and procedural guidelines; or (2) training to competently mediate cases being referred to them.
Reply To The Commentators On The Ethical Dilemmas Study, A, Robert A. Baruch Bush
Reply To The Commentators On The Ethical Dilemmas Study, A, Robert A. Baruch Bush
Journal of Dispute Resolution
The invitation to republish here the report on my study of mediators' ethical dilemmas was a very gratifying one. My hope was that this report would generate further thought and discussion on this important subject, and this symposium will certainly help to realize that aim. For this I am grateful to the editors of the Journal and their advisor, Professor Leonard Riskin. Moreover, the best part of this invitation was that it contemplated the publication of comments on the report from a number of well-known and thoughtful figures in the mediation field. This kind of public dialogue is something all …
Chipping Away At Lawyer Veracity: The Aba's Turn Toward Situation Ethics In Negotiations, Ruth Fleet Thurman
Chipping Away At Lawyer Veracity: The Aba's Turn Toward Situation Ethics In Negotiations, Ruth Fleet Thurman
Journal of Dispute Resolution
This Article questions the wisdom of the Model Rule's exceptions to honest dealings in negotiations on several grounds: (1) Proponents of the exceptions have not offered empirical evidence or professional justification for this approach; 16 (2) The approach will further tarnish the profession's image; (3) The approach will create a slippery slope that leads to unintended ethical violations; and (4) The approach will erode the high degree of trust, veracity and integrity required of lawyers as "officer[s] of the legal system."1 7 For these reasons, the Model Rule's exceptions to honesty in negotiations should be abolished by the ABA and …