Document Type

Article

Publication Title

South Texas Law Review

Volume

38

Publication Date

1997

Keywords

Alternative Dispute Resolution, ADR, mediation, American Arbitration Association, mediation, Model Standards of Conduct for Mediators

Abstract

It can no longer be doubted that alternative dispute resolution ("ADR") as a substitute for court-based litigation is growing in appeal. The high costs, adversarial nature, and time of traditional litigation have led to the development and popularity of other dispute resolution alternatives. ADR is making substantial inroads into the legal mainstream and is increasingly used in a wide variety of contexts by courts; federal, state, and local governments; businesses and private individuals. According to a recent survey conducted by the National Institute for Dispute Resolution, twenty-eight state courts now have mandatory, non-binding arbitration programs; more than half of the states have formally incorporated ADR methods other than arbitration into their systems through statewide legislation, court rules, or policies; most states offer mediation for divorce, custody, visitation or other family issues on a voluntary or mandatory basis; and virtually every state has experimented with ADR in one or more of its courts. The different forms of ADR include mediation, conciliation, negotiation, mini-trials, summary jury trials, and early neutral evaluation. This article deals with the process of mediation. In recognition of the growth of mediation, the American Arbitration Association ("AAA"), the American Bar Association ("ABA"), and the Society of Professionals in Dispute Resolution ("SPIDR") formed a joint committee in 1992 to develop a code of conduct for dispute mediators. A successful earlier joint effort by the ABA and AAA to develop a guide of ethical rules for arbitrators was a strong impetus for this collaboration. After two years of work, the latest effort culminated in proposed Model Standards of Conduct for Mediators ("the Standards"). The Standards are divided into nine sections and cover a broad range of topics: Self-Determination; Impartiality; Conflicts of Interest; Competence; Confidentiality; Quality of the Process; Advertisements and Solicitation; Fees; and Obligations to the Mediation Process. Each Standard states a broad principle so as to encompass varying situations and includes descriptive comments, stated both generally and specifically. This Article offers an overview of each proposed Standard along with a general discussion of the subject areas and ref- erences to various ethical codes and cases in point.

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