Ethical Issues For Neutrals

There is now a well-established and fairly broadly accepted set of basic standards for ethical practices in ADR. Most of these standards apply across a remarkably broad spectrum of ADR models: mediation in housing court; transformative mediation in the schools; parenting time expediting; civil mediation.

The questions below represent a small sample of frequently occurring ethical issues. For a far more thorough treatment of these issues please see the National Clearing House for Mediator Ethics Opinions maintained by the ABA Dispute Resolution Section. This searchable database includes hundreds of opinions on mediator ethics from 43 states.

Q. The judge appointed me as a neutral, and we finished the first session with a second session set to start next week. Now the judge is calling asking what happened at session one. What should I tell her?

A. Information that may be shared with the court during the ADR process is very limited. The neutral (or counsel) may inform the judge of a failure of a party or attorney to comply with the order to attend, a party's request for additional time, a request for additional procedural action by the court (with the consent of the parties), or the neutral's opinion that the ADR process is inappropriate for the case. Minn. Rules P. District Court's Rule 114.10.

After ADR is complete communication is limited to the status of the case (generally settled or not settled) and, with the consent of the parties, actions the court may take that would facilitate the possibility of settlement.
Q. I think my mediator really favored my ex-husband, and I can prove it. But now I'm told he isn't on the Supreme Court list of "qualified" family law neutrals. Who can I complain to?

A. "Qualified" neutrals undergo certified training. Mediators and other facilitative neutrals are required to take a minimum of 30 hours (40 hours for family law issues) focusing on mediation skills and techniques, information gathering skills, conflict resolution and ethical rules, statutes and practices. Some family neutrals are also required to have five years of family law related professional experience. General Rules of Practice Rule 114.13.

Individuals who are not "qualified" may serve as neutrals without training, and the ADR "Code of Ethics" does not generally apply to them. However, if the neutral is serving in a court-appointed role, she subjects herself to ADR ethics board oversight along with "qualified" neutrals. Complaints pertaining to court appointed and "qualified" neutrals may be directed to the ADR ethics board at 25 Reverend Dr. Martin Luther King Jr. Boulevard, Suite 120, St. Paul, Minnesota 55155-1500.
Q. Isn't every neutral required to follow the same rules?

A. No. See above. However, if a neutral is a licensed member of another profession, e.g., attorney at law or psychologist, there may be applicable ethical rules or guidelines for that profession, enforceable through the profession's oversight board. See, for example, Minnesota Rules of Professional Conduct, Rule 1.7 (conflicts of interest); Rule 1.9 (duties to former clients); and rules generally regarding competence.
Q. On my mediator's web site, he claims that he has been "certified" as a neutral. What does that mean?

A. The State of Minnesota does not certify neutrals and it is inappropriate for a neutral to identify herself as "certified" or "licensed". Rule VI of Rule 114 Appendix, General Rules of Practice. However, some colleges and universities offer ADR certificates programs, so a neutral may advertise that they have a degree or certificate in ADR.
Q. I served as a neutral and sent out my bill for my services. Now the parties are complaining about my rates and fees. What can I do?

A. The agreement to provide services for a fee is a contract. Whether it is legally enforceable depends upon the clarity and circumstances of the parties' agreement in advance. The ethical rules require neutrals to "fully disclose and explain the basis of compensation, fees and charges to the parties." As a matter of "best practice" fee agreements should be in writing and signed by the neutral and the respective parties and attorneys before the process begins. Not only enforcement of the agreement, but also the quality of the process is enhanced by written neutral agreements for a neutral's services.
Q. I am supposed to serve as a neutral on a case next week, but I just determined that I once worked with the wife of one of the parties in another matter. Can I still serve as mediator?

A. Financial or personal interest in the outcome of the proceeding or any existing or past financial business, professional, family or social relationship which is likely to affect impartiality or which might reasonably create an appearance of partiality or bias is a conflict of interest. When a prospective neutral discovers a potential conflict of interest, she should first ascertain whether she can serve the parties fairly and without bias. If the neutral believes that she can be impartial the potential conflict must be disclosed to the parties, preferably in writing, and "the neutral shall decline to participate unless all parties choose to retain the neutral." Rule II of the Appendix to Rule 114, The General Rules of Practice for the District Courts. Conflicts of interest under the ethical rules are based less on relationship and more on full disclosure.
Q. I served last year as a court appointed neutral in a case involving Mrs. Smith. Now, she is calling and wants me to be her lawyer in another matter. Can I do that?

A. If the legal representation is on a matter that is "substantially factually related" to the neutral services, the neutral must not represent the party for a "reasonable time under the circumstances."

The Code of Ethics does not set forth a clear guideline in circumstances where the later professional relationship is factually unrelated to the matter involved in the neutral process. The Comments to the Rules state: "In deciding whether to establish a relationship with one of the parties in an unrelated matter, the neutral should exercise caution in circumstances which would raise legitimate questions about the integrity of the ADR process." Advisory Task Force Comments - 1997, Rule 114 II Appendix. Thus, in addition to the matters being unrelated, the perception and interests of the parties involved in the neutral process should also be considered. Best practice would be to get the written consent of all parties to the case in which you were a neutral before proceeding to represent Mrs. Smith.
Q. I am scheduled to mediate a case next week, and one of the parties to the case is calling to discuss the matter. Should I agree to talk to her?

A. Ex parte communication with the neutral is prohibited in adjudicative process (e.g., arbitration), but not non-adjudicative processes (e.g., mediation). Rule 114.10(a) and (b), General Rules of Practice for the District Courts. Parties are allowed to communicate with the non-adjudicative neutral "with the consent of the neutral" and if "communication encourages or facilitates settlement." The neutral should be encouraged to exercise this rule with some caution based upon the reasonable expectations of the parties; those expectations might be quite different in civil mediation as opposed to mediation in housing court or transformative mediation in the schools where the parties generally do not meet with or speak with the neutral separately.
Q. I have been asked to mediate a dispute with subject matter with which I am not familiar. Should I accept the assignment even though I will not be able to give the parties advice or direction about settling the case?

A. The question raises multiple issues. The Code of Ethics requires an individual serving as a neutral to possess "the necessary qualifications to satisfy the reasonable expectations of the parties." Rule III, Appendix to Rule 114 of the General Rules of Practice for the District Courts. Competence does not necessarily imply previous familiarity with the particular legal aspects or issues of the dispute; competence may instead refer to the skills of the neutral and the neutral process. Regardless, the neutral may serve only if the parties have been fully apprised of his qualifications and credentials. Minnesota Statute Section 572.37 provides:

"no individual may act as the mediator pursuant to The Minnesota Civil Mediation Act for compensation without providing the individuals to the conflict with a written statement of qualifications prior to beginning mediation. The statement shall describe educational background and relevant training and experience in the field."

Rule 114.05 allows the court to appoint for mediation or med-arb only neutrals who qualify under Rule 114.112. A non "qualified" neutral may be appointed based on legal or other professional training or experience only for adjudicative matters. The comments by the Implementation Committee from 1993, allow the parties by agreement to select only a "qualified" neutral for mediation and med-arb.

The question points to a common misconception about facilitative, non-adjudicative neutrals: The suggestion that the neutral is to give "advice" or "direction" about settlement. The fundamental principal of mediation is voluntary, uncoerced self-determination. Rule 114 App. Rule I, Mediation.
Q. Can I become a qualified neutral without completing the training required under Rule 114.13?

A. Individuals may seek a waiver of training requirements under the Rules by submitting appropriate application to the Minnesota Supreme Court ADR Ethics Board. Relevant, neutral facilitative and adjudicative experience is required, and the application must show "exceptional competence". Rule 114.14, the General Rules of Practice for the District Courts.