I. Standards for Party Advocates
A. Sources for Ethical Guidance
1. State rules of professional conduct for attorneys
2. Judicial decisions of courts whose ethical rules apply
3. Formal opinions and disciplinary rulings of state ethics committees or commissions
4. Model Rules of Professional Conduct of the American Bar Association
5. Formal and informal opinions of the ABA Standing Committee on Ethics and Professional Responsibility
B. Other Helpful Sources
1. ABA Section of Litigation’s 2002 publication entitled “Ethical Guidelines for Settlement Negotiations”
2. Restatement (Third) of the Law Governing Lawyers (2000)
C. Areas of Concern for Advocates
1. Competent representation (Model Rule 1.1)
2. Settlement authority (Model Rule 1.2(a))
3. Prompt discussion of settlement options (Model Rule 1.4(d))
4. Right to initiate settlement discussions (Model Rule 1.2(a))
5. Duty to communicate and explain offers (Model Rule 1.4(a))
6. “No contact” rule (Model Rule 4.2)
7. Duty of confidentiality (Model Rule 1.6)
8. Threats of criminal prosecution and extortionate threats
9. Duty to report unethical behavior (Model Rule 8.3(a))
10. False and misleading statement to adversary (Model Rule 4.1(a))
11. Non-disclosure to adversary of material facts (Model Rules 4.1(b) & 1.6)
12. Settlements barring counsel from similar cases (Model Rule 5.6)
13. Non-cooperation clauses (Model Rule 3.4(f))
14. Representing multiple clients in settlement (Model Rule 1.6)
15. Issues in “aggregate settlements” (Model Rule 1.8(g))
16. Client’s settlement decision controls (Model Rule 1.2(a))
17. Disposition of discovery and spoliation (Model Rule 3.4)
18. Drafting settlement agreements
· Faithful incorporation of settlement terms
· Disclosing adversary’s errors or omissions
II. Standards for Mediators
A. Sources of Guidance
1. Local Bankruptcy Rules
2. Ethical rules and guidelines applicable to mediators that are promulgated by state courts or regulatory bodies
3. Rules of professional conduct applicable to attorney mediators
4. Model Standards of Conduct for Mediators (prepared in 1994 by the American Arbitration Association, the ABA Section of Dispute Resolution, and the Association for Conflict Resolution and last revised 2005)
B. Issues Applicable to Mediators
1. Party self-determination (Model Standard of Conduct, Standard I)
· Evaluative mediator style
· Mediator proposals
· Unrepresented parties
2. Conflicts of interest and disclosure (Model Standards of Conduct, Standard III(C))
3. Duty of confidentiality (Model Standards of Conduct, Standard V(A))
4. Duty of impartiality (Model Standards of Conduct, Standard II(A))
5. Mediator competence (Model Standards of Conduct, Standard IV(A))
6. Duty of withdrawal from or termination of mediation (Model Standards of Conduct, Standard IV(A)(2) & (9))
7. Serving as arbitrator of same dispute (Model Standards of Conduct, Standard VI(A)(8))
8. Drafting settlement documents
· Competence
· Unauthorized practice of law
· Mediator liability
9. Mediator compensation
· Allocation of party responsibility
· Contingency fee arrangements
10. Post-mediation conflicts
11. Document retention and disposition
12. Ethics in marketing (Model Standards of Conduct, Standard VII(A))
13. Unauthorized practice of law
· Issues for attorneys
· Issues for non-attorneys
C. Ethical Guidance for Mediators
1. State ADR authorities and regulatory bodies
ABA Section of Dispute Resolution, Committee on Mediator Ethical Guidance