Court-Annexed ADR in
South Carolina:
Fact & Fiction
About Certification and Rules
Andrew Walsh, South Carolina Bar
USC Law School, ADR Course (Laws 629)
Columbia, SC
Monday, March 18, 2005
Useful SC Court-ADR Info
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Andrew M. Walsh
Dispute Resolution Director
South Carolina Bar
Phones: 803.799.6653, ext. 159
Fax: 803.799.5290
E-Mail: [email protected]
P.O. Box 608
(950 Taylor Street)
Columbia, SC
29202-0608
OUTLINE
ADR Commission
Certification
ADR Rules
Current
Proposed
Ethics
S.CT. ADR COMMISSION
ADR Commission
Board of Arbitrator & Mediator Certification
Program Subcommittee
User Education Subcommittee
Mediator & Arbitrator Subcommittee
Policy Subcommittee
An ADR Quiz: True or False?
13 Common Misconceptions
1. Training guarantees Board certification.
FALSE. Training is only one criteria See Rules (CC13; FC10) for rest. Must APPLY!
2. Training can be piecemeal, so long as I get the total hours required.
FALSE. No “modular training.” [Hang on to your agenda, syllabus, proofs of completion!]
3. Only Board-certified neutrals can be court-appointed or on the roster.
TRUE. But see #4.
4. Anyone can mediate, provided all parties agree.
TRUE. Certification is for appointment purposes only. See #3.
5. You must file suit before you can mediate.
FALSE. Pre-complaint ADR is an option and an exception to mandate; see CC Rule 2(c)(7).
6. Non-attorneys can be certified mediators in circuit court.
FALSE. Limited to attorneys licensed for 3+ years. See CC Rule 13(a).
7. Non-attorneys can be certified mediators in family court.
TRUE, but must still be one of 7 types of licensed professionals. See FC Rule 10(a)(3).
8. The ADR rules are uniform in all South Carolina counties.
FALSE, but someday true. Effective in circuit and family courts of about 7 “pilot counties”.
An ADR Quiz: True or False?
13 Common Misconceptions (cont’d)
9. Only the Board can certify court-appointed neutrals in this
state.
TRUE. See CC Rule 1(f). Other entities may “certify” neutrals and have “rosters,”
but not official re South Carolina circuit and family courts.
10. Certification is forever.
FALSE. Must renew by 12/31 each year. (We’ll send a reminder in Nov.)
11. Out-of-state attorneys can be Board-certified.
TRUE, but certain requirements. See CC Rule 13(a)(2); FC Rule 10(a)(2). If
foreign-trained, may need supplemental SC training. CC Rule 14(b); FC Rule 11(b).
12. The Standards of Conduct apply to certified neutrals only.
FALSE. Applies to all neutrals “whether certified or not….” See CC16(a); FC12(a)
13. The Bar regulates certification.
FALSE – sort of. The Supreme Court regulates court ADR via it’s Board and
Commission, albeit housed at, funded by and administrated by Bar.
Neutral Certificates, by type
Of the 996 Certificates Active as of 3/15/05:
Family Court
Mediators
22%
Circuit Court
Mediators
49%
Circuit Court
Arbitrators
29%
Certification Stats
Select Statistics Regarding Neutrals Population as of 3/15/05
Comments
Persons In Database
931
Active Certificates
996
Circuit Court Arbitrators
287
Circuit Court Mediators
487
Family Court Mediators
222
Non-Attorneys with an active FCM
Certificate
All applicants, regardless of application status (accepted, denied, inactive,
withdrawn or pending).
Excludes pending applications. Note each neutral may hold more than one
certificate. Since 2003, there has been drop in circuit court arbitrators, but
exceeded by rise in circuit and family court mediators.
43
Only attorneys can be CCA or CCM certified; FCM certificates can be issued
to any of the following licensed professionals: attorney, psychologist, master
social worker, independent social worker, professional counselor, associate
counselor, marital and family therapist, or a physician specializing in
psychiatry.
Statewide Neutral Distribution
Active Board-Certified Neutrals Available in Each SC County
(Approximation -- see Notes)(as of 12/16/04 during recertification process)
CCA CCM FCM
Abbeville
20
46
13
Aiken
19
58
15
NOTES:
Allendale
16
51
9
Anderson
43
98
43
Bamberg
15
43
9
1. Abbreviations:
Barnwell
14
42
11
CCA = Circuit Court Arbitrator
Beaufort
37
94
24
CCM = Circuit Court Mediator
Berkeley
48
94
34
FCM = Family Court Mediator
Calhoun
21
53
13
Charleston
83
182
58
2. Figures are not additive, since one neutral can have multiple
Cherokee
23
56
17
certificates, or have agreed to be available in multiple counties.
Chester
15
48
8
(E.g., John Doe might be willing to serve as a CCA and FCM in
Chesterfield
13
36
12
Greenville county only, but as a CCM in Greenville, Anderson,
Clarendon
22
47
11
Richland and Lexington counties.)
Colleton
40
87
22
Darlington
27
50
18
Dillon
20
47
12
3. Tentative figures; based on inherited database undergoing
Dorchester
44
88
38
updating and verification, including new data via recertification
Edgefield
22
46
15
process.
Fairfield
27
59
15
Florence
64
105
34
Georgetown
44
91
24
Greenville
73
155
67
4. These are neutrals willing to serve in each county; they may or
Greenwood
26
60
17
Hampton
23
56
12
may not be a resident of the county in which they are willing to
Horry
56
110
33
serve.
Jasper
23
65
18
Kershaw
30
63
12
Lancaster
19
46
17
Laurens
34
77
28
5. Persons indicating willingness to serve "Statewide" (see
Lee
24
46
13
penultimate row of table) are already included in each county
Lexington
78
139
45
Marion
29
56
17
listed. (E.g., 10 of the 21 persons listed as willing to serve as
Marlboro
15
41
9
CCA in McCormick County are persons willing to serve as CCA in
McCormick
21
42
11
all counties).
Newberry
30
67
23
Oconee
24
66
23
Orangeburg
28
59
13
Pickens
33
82
37
Richland
96
177
48
Saluda
23
50
17
Spartanburg
43
100
43
Sumter
46
83
31
Union
20
53
18
Williamsburg
22
45
10
York
24
52
17
Statewide
10
31
6
TOTAL (not additive)
287
487
222
“The ADR Rules”
Rule 422, SCACR
ADR Commission Regs
Circuit Court ADR Rules
Greenville/Anderson Co. Standing Orders (“Modified Rules”)
Family Court Mediation Rules
Greenville/Anderson Co. Standing Orders (“Modified Rules”)
Ethics
Standards of Conduct for Mediators
Code of Ethics for Arbitrators
Proposed Court-Annexed ADR Rules
RULE 422, SCACR
Creates
Commission on ADR (f/k/a “Joint
Commission”)
Board of Arbitrator and Mediator Certification
Details Powers, Composition and Duties
Expanding Uniform, Statewide Court-ADR
Comments and Input Welcome
ADRC Regs
Fundamementals: quorums, meetings,
appointments, etc.
Procedures for:
Certification
• Training Approvals
Recertification
Decertification & Discipline
Circuit Court ADR Rules
Highlights & Summary
Cir. Ct. ADR Rule 1: Terms
“neutral” = mediators and arbitrators
“certified” = Board-certified
“mediation” = facilitation
“arbitration” = decision
self-determination: parties forced to table,
not to resolve
CC Rule 2: Cases Covered
Bifurcation: med if > $25k; arb if <= $25k
Modified Rules: mediation sole default process; arb by
election only
Exceptions: 7 narrow exceptions (only 2 under
Modified Rules)
Prior med/arb
Criminal/appellate-like (e.g., PCR, writ of cert)
Special (habeas, mandamus, contempt)
State forfeitures and mortgage foreclosures
CC Rule 3: Picking Neutral
Timely Selection vs. Appointment: 210
days to select neutral; 14 more days to file
stipulation or notice requesting
appointment. Appointed from Roster
Modified Rules: No stip/request required;
Proof of ADR (POA) due by 300th day;
automatic appointment after 210th day.
Inaction? Rule to Show Cause issues
CC Rule 4: ADR Conference
Locale? Neutral decides where in county
No delay of motion/discovery practice
Neutral, not parties, recesses/reconvenes
Private – parties’ say who else comes
W/I 300 days, unless CJAP defers for good
cause
CCRule 5: Party/Atty Duties-Med
Physical attendance w/ “full authority to settle”
(mediation, not arb)
Ex parte memos allowed (not arb)
Must cooperate with neutral
Confidential communications per signed
agreement. (Less so arbs.)
Finalize agreement:
on the spot, if informal
By attorneys, if formal
Neutrals says who files
CCRule 6: Party/Atty Duties-Arb
Physical attendance: same as mediation, but no
insurance rep or “full authority to settle”
requirement
memos allowed, but not ex parte
Must cooperate with neutral
No confidentiality provision as in mediation
CC Rule 7: Arb Hearing, Award
Hearing similar to summary bench trials:
Can compel/subpoena sworn witnesses/documents
Arbitrator has trial-judge powers, except contempt
Evidence law guide only, except privilege applies
No ex parte communications with arbitrator
Two-hour discretionary cap; no cumulative evidence
Written award, filed/served w/I 5 days of hearing,
resolving all plead issues. Need not be reasoned
unless exceeds $25,000.
Non-binding: non-defaulting party must exercise
right to trial de novo w/i 30 days of award or
prevailing party can have CJAP enter as judgment
CC Rule 8: Mediator’s Duties
Set Up and Control conference.
Define/describe 8 things; usually covered in
Opening and/or Agreement to Mediate
Caucus
Confidentiality
Privilege preserved
Not Witness
Immune
Stay Impartial
Timely Declare Impasse
Report Results (form)
CC Rule 9: Arbitrator’s Duties
Set Up and Control conference.
Define/describe 3 things (not 8 as in mediation):
process, duties and cost
No Caucus and limited Confidentiality
Arbitrator cannot be compelled or subpoenaed
Dox to arbitrator as arbitrator are confidential
Stay Impartial; disclose conflicts
Timely file award and any required stats
Absolute immunity
CC Rule 10: Compensation
AMOUNT
Selected = market rate/terms
Appointed =
•
•
•
•
$125/hour cap
Actual and Necessary expenses
1 hour cap on prep time
No travel time
PAYMENT
Equal Shares per party
Paid at end of mediation
Indigency application w/I 10 days; discretionary
CC Rule 11: Sanctions
No POA by 300th day? Rule Show Cause
Failure to attend? “Any lawful sanctions”
including Rule 37, SCRCP sanctions
Attorney fees
Neutral fees
Attendee expenses
Contempt
Dismissal. Hopkins v. Harrell, 352 S.C. 517,
574 S.E.2d 747 (S.C. Ct. App. 2002).
CC Rules 12-End:
Certification & Misc.
Cert (Rule 13): attorneys licensed >=3yrs. + 40
hours of instruction in approved course for
mediation (see Rule 14 criteria), 6 hours for
arbitratiion (see Rule 15); see T/F quiz
Decert and Discipline (Rule 16)
If no longer eligible, violate ADR Rules or violate
SOC (ALL neutrals, certified or not)
Neutral Discipline in addition to decert and attorney
discipline
Board processes complaints and recommends to S.Ct.;
cf. ADRC Regs.
Uniform:No local rules w/o permission (Rule 17)
Applicable in about 6 pilot counties (Rule 18)
Family Court Mediation
Rules
Highlights & Summary
FC Rule 2: Cases Covered
Children, but not property: “All issues of
custody or visitation in domestic relations
actions” or as moved by party(ies)
Exemptions: contempt actions, uncontested
custody/visitation issues, showing of
exceptional circumstances (e.g., geography,
incapacity/incompetence, abuse, prior
mediation).
FC Rule 3: Picking Neutral
Similar to Circuit Court, except timing
Timely Selection vs. Appointment:
select by first of either temporary hearing or 60
days of summons/complaint filed;
5 more days to file stipulation or notice
requesting appointment.
Appointed from Roster
FC Rule 4:Mediation Conference
Similar to Circuit Court, except parties must:
Participate in at least 3 conferences, unless agree sooner
Start w/i 30 days of selection/appointment of mediator
Finish w/i 90 days of first conference
Also:
Case cannot be called to trial during that time
Extension allowed if by motion and good cause shown
Attorneys might be excluded (“Other persons, including
attorneys, may attend only with the permission of the
parties and mediator.”)
FCRule 5: Party/Atty Duties
Similar to Circuit Court, except:
“All attorneys should fairly and objectively inform
their clients about mediation.”
Expressly excluded from confidentiality are
threats and attempts to inflict physical harm
Expressly preserved is right to seek relief under
the Parental Kidnapping Act or domestic abuse
statutes
FC Rule 6 and Rule 7: Duties
Similar to Circuit Court, except, inter alia:
Expressly includes sanctions for failure to pay
mediator
Does not expressly mention Rule 37(b) sanctions,
but does permit “any lawful sanctions.”
Mediator must also inform parties “The difference
between mediation and other forms of conflict
resolution;….”
Mediation report must be filed “immediately,”
with no 10-day language
Confidentiality exceptions repeated.
PROPOSED RULES
Highlights & Summary
CIRCUIT COURT HIGHLIGHTS
Rules 1, 3 and 5(e):
Mediation sole default process, albeit parties may
elect arbitration instead.
Exemptions remain narrow and limited, albeit
clarified.
CJAP can send exempt cases to mediation where
appropriate and can defer mediation for good
cause. [To insulate trial judges from ADR process
and to ensure uniformity of rulings, CJAP decides
most ADR-related motions, if any.]
CIRCUIT COURT HIGHLIGHTS
Rules 4, 5 and 7(f):
POA v Stip: Focus on whether mediation timely held (by
the 300th day following filing of the complaint), not
whether preliminaries started.
Need not file stipulation of or request for a neutral. If no Proof of
ADR (POA) filed within 210 days, clerk automatically appoints
primary and secondary mediator from an official “Roster” of
certified neutrals maintained by the Board.
Appointments must be from Roster, but parties can select
non-Roster mediators, even after appointment, provided
mediation timely held.
Duty to notify appointed mediator is on plaintiff, not court
or clerk.
Case cannot be docketed for trial until mediator files POA.
POA must accompany any request for final hearing or trial.
CIRCUIT COURT HIGHLIGHTS
Rule 6:
Absent agreement or order from the CJAP,
the parties and insurer must attend
mediation with full authority to settle
Need not be willing to settle, only able and
in attendance.
Agreements must be reduced to writing
Parties free to file or not to file agreement
Mediator should designate who will file
consent judgment or dismissal papers.
CIRCUIT COURT HIGHLIGHTS
Rules 8 and 7(g):
Confidentiality rules streamlined, collected
into single rule.
Narrow exceptions, e.g., disclosures of
threats of harm or disclosures required by
law or codes of ethics.
Mediator immune to the same extent as
state judges and cannot be forced to testify
or produce records.
CIRCUIT COURT HIGHLIGHTS
Rules 9 and 7(e):
Parties pay:
selected neutrals a market rate agreed upon between the parties and
the neutral
appointed mediators no more than $175/hour, with a $50 cap on
expenses.
Appointed mediators:
cannot be compensated for their travel time
can be compensated for their travel expenses (e.g., mileage), at
least as part of the $50 total expense cap.
Indigents may move to waive a mediator’s fees no later
than 10 days after the mediation is completed.
Mediators must promptly end impassed or nonviable
mediations.
CIRCUIT COURT HIGHLIGHTS
Rule 10:
Broad Court power to enforce ADR rules:
cost shifting
other SCRCP Rule 37(b) sanctions.
Failure to file a POA results in a show cause
hearing.
Status conferences and scheduling orders
remain.
CIRCUIT COURT HIGHLIGHTS
Rules 11-13: Arbitration
Arbitration permitted in lieu of mediation.
Rules cover non-binding arbitration and defer to
Uniform Arbitration Act if parties elect binding
arbitration.
Arbitration is assumed non-binding absent express
contrary agreement.
POA still required and trial de novo remains a
right following non-binding arbitration.
Default procedures are set for hearings and awards
where the parties fail to specify their own terms.
CIRCUIT COURT HIGHLIGHTS
Rules 14-17: The Board certifies neutrals and
approves training programs.
Only attorneys licensed for 3 years can be certified
and appointed in circuit court.
Training must meet minimum, specific standards,
including supplemental training for out-of-state
training omitting South Carolina law.
Supreme Court retains disciplinary power, which
can go to the attorney-neutral’s law license, not
merely his/her mediator/arbitrator certificate.
Mediators and arbitrators are held to a nationally
recognized code of ethics and standards of
conduct appended to the rules.
CIRCUIT COURT HIGHLIGHTS
Rules 18-20:
ADR rules shall be…
uniform statewide
implemented as ordered by Supreme
Court
with no local rules unless pre-approved
by the Supreme Court.
FAMILY COURT HIGHLIGHTS
Rules 1 and 3:
Expanded to “all contested issues in
domestic relations actions filed in family
court,” not just custody/visitation issues.
Narrow exceptions largely unchanged.
Parties may agree to arbitrate property/
alimony issues (not custody/visitation).
CJAP can send exempt cases to mediation
where appropriate.
FAMILY COURT HIGHLIGHTS
Rule 4(d):
Mediation must:
commence w/i 30 days of selection/appointment
complete before final hearing.
If child custody/visitation at issue:
Select/appoint mediator no later than initial temporary hearing
Mediator named in temporary order
All other contested issues:
mediator appointed if not stipulated in request for merits hearing;
mediation must be held before final hearing, giving parties time for
discovery.
Appointed mediators must be from Roster, but parties free
to select own mediator, even if non-Roster and after
appointment, provided mediation still timely.
Duty to notify appointed mediator on plaintiff, not court.
FAMILY COURT HIGHLIGHTS
Rule 5(b): Obligation to mediate does not excuse
motion, discovery or other deadlines.
Rule 5(g):
Parties, not courts, schedule mediation.
Mediator files Proof of ADR (POA).
Case not docketed for trial until POA filed.
Rule eliminated requiring three mediation conferences.
Rule 6(h): Family courts retain power to approve
or disapprove agreements reached in mediation.
Rule 7(f): POA must accompany any request for a
final hearing or trial.
FAMILY COURT HIGHLIGHTS
Rule 8: Confidentiality rules streamlined, collected into a
single rule, adopting for both courts the family court rule
expressly excepting from confidentiality such things as
PKA violations and statutory disclosure obligations.
Rule 9: Eliminated compensation differences between
circuit and family court neutrals: Parties pay selected
neutrals a negotiated market rate, but pay appointed
mediators no more than $175/hour, with a $50 cap on
expenses, which can include travel expenses, but not travel
time. Indigents may move to waive a mediator’s fees no
later than 10 days after the mediation is completed.
Rule 10: Broad court power to enforce ADR rules,
including cost shifting and SCRCP Rule 37(b) sanctions.
COMMENTS WELCOME
First, review full draft of rules with
annotated comments at www.scbar.org/adr.
If comments/questions, contact:
Andrew Walsh, Dispute Resolution Director,
South Carolina Bar, P.O. Box 608, Columbia,
SC 29202, [email protected], 803-7996653, ext. 159; or
ADR Commissioners online or 2004-05 South
Carolina Bar Lawyers Desk Book, p. 409.
ETHICS of NEUTRALS
Highlights & Summary
Standards of Conduct for
Mediators
Highlights & Summary
Standard I: Self-Determination
A Mediator Shall Recognize That Mediation Is
Based On The Principle Of Self-Determination
By The Parties.
fundamental principle
ability of the parties to reach a voluntary,
uncoerced agreement.
Facilitation
Consultation of other professionals.
Standard II: Impartiality
A Mediator Shall Conduct The Mediation In
An Impartial Manner.
mediate only those matters you can remain
impartial and evenhanded; if not, withdraw.
Overt impartiality; avoid appearance of partiality
Guard against reactions/prejudices re parties'
personal characteristics, background or
performance at the mediation.
Standard III: Conflicts of Interest
A mediator shall disclose all actual and potential
conflicts of interest reasonably known to the mediator.
After disclosure, the mediator shall decline to mediate
unless all parties choose to retain the mediator. The
need to protect against conflicts of interest also governs
conduct that occurs during and after the mediation.
“might create an impression of possible bias”
If C/I “casts serious doubt on the integrity of the process,
the mediator shall decline”
Get consent for subsequent rep.
Disclose relation to referrals.
Resist “must settle” pressures.
Standard IV: Competence
A mediator shall mediate only when the
mediator has the necessary qualifications to
satisfy the reasonable expectations of the
parties.
Anyone can mediate, with consent, but ethically
obliged to decline if not qualified.
Court/Board obliged to assure competence of
appointed neutrals.
Be prepared to show credentials (resume, not
certification).
Standard V: Confidentiality
A mediator shall maintain the reasonable
expectations of the parties with regard to
confidentiality.
Confidential, unless consent or required by
law/public policy.
See ADR Rules 4, 5 and 8.
Discuss at start/end of each caucus.
Report only minimal necessary; use form.
Evals and stats.
Standard VI: Process Quality
A mediator shall conduct the mediation fairly,
diligently, and in a manner consistent with the principle
of self-determination by the parties.
Protect the process; ensure mutual respect.
Diligence and procedural fairness.
Opportunity to be heard.
Parties agree and terminate. (You may “declare” impasse,
but they evidence it.)
Only mediate if you have the time and commitment;
prevent delays.
Avoid advice; facilitate only; refer to other professionals.
Withdraw, if needed – including if illegal conduct or
parties incapable of participation.
Do not define success by “high settlement rate.”
Standard VIII: Fees
A mediator shall fully disclose and explain the
basis of compensation, fees, and charges to the
parties.
Fees must be clear, upfront and reasonable …
…and preferably in writing.
Return unearned fees.
No contingency agreements.
No referral fees.
Co-mediation fee allocation should also be
reasonable.
Standard IX: Obligation to Process
Mediators have a duty to improve the practice
of mediation.
Use your knowledge for good, not evil!
Educate and promote mediation.
Make mediation accessible.
Correct abuses.
Improve your skills and abilities.
ETHICS of NEUTRALS
New Developments
Two Hats:
Ethics 2000 & Attorney-Neutrals
ATTORNEY ETHICS CHANGES: SC Bar’s House of Delegates
and SC Ethics Commission approved changes which the Supreme
Court of South Carolina is considering. Some affect attorneyneutrals. For example …
RULE 2.4: New rule defining when a lawyer is serving as third-party
neutral and his duty to disclose his role to pro se parties. Read
Comments for excellent insights.
RULE 1.12: Clarifies interplay between attorney conflicts and
neutral conflicts; akin to standard for former judges or government
employees.
PREAMBLE [3]: Recognizes that attorney always under certain
ethical obligations, even in “nonrepresentational role”. For example,
per Rule 8.4, attorney may never commit fraud in a business.
READ WHERE?
Excerpts attached.
Online (soon) at www.scbar.org
Proposed ABA/AAA/ACR mediator code changes at
http://moritzlaw.osu.edu/dr/
Select Ethics 2000 Excerpts Re ADR
(as proposed by SC Bar House of Delegates and Ethics Commission to and pending before
South Carolina Supreme Court)
PREAMBLE: A LAWYER'S RESPONSIBILITIES
…
[3] In addition to these representational functions, a lawyer may serve
as a third-party neutral, a nonrepresentational role helping the parties
to resolve a dispute or other matter. Some of these Rules apply
directly to lawyers who are or have served as third-party neutrals.
See, e.g., Rules 1.12 and 2.4. In addition, there are Rules that apply
to lawyers who are not active in the practice of law or to practicing
lawyers even when they are acting in a nonprofessional capacity. For
example, a lawyer who commits fraud in the conduct of a business is
subject to discipline for engaging in conduct involving dishonesty,
fraud, deceit or misrepresentation. See Rule 8.4.
…
Select Ethics 2000 Excerpts Re ADR
(as proposed by SC Bar House of Delegates and Ethics Commission to and pending before
South Carolina Supreme Court)
RULE 1.12 FORMER JUDGE, ARBITRATOR, MEDIATOR OR OTHER THIRD-PARTY NEUTRAL
(a) Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with
a matter in which the lawyer participated personally and substantially as a judge or other
adjudicative officer or law clerk to such a person or as an arbitrator, mediator or other thirdparty neutral, unless all parties to the proceeding give informed consent, confirmed in
writing.
(b) A lawyer shall not negotiate for employment with any person who is involved as a party
or as lawyer for a party in a matter in which the lawyer is participating personally and
substantially as a judge or other adjudicative officer or as an arbitrator, mediator or other
third-party neutral. A lawyer serving as a law clerk to a judge or other adjudicative officer
may negotiate for employment with a party or lawyer involved in a matter in which the clerk
is participating personally and substantially, but only after the lawyer has notified the judge
or other adjudicative officer.
(c) If a lawyer is disqualified by paragraph (a), no lawyer in a firm with which that lawyer is
associated may knowingly undertake or continue representation in the matter unless:
(1) the disqualified lawyer is timely screened from any participation in the matter and is
apportioned no part of the fee therefrom; and
(2) written notice is promptly given to the parties and any appropriate tribunal to enable
them to ascertain compliance with the provisions of this rule.
Select Ethics 2000 Excerpts Re ADR
(as proposed by SC Bar House of Delegates and Ethics Commission to and pending before
South Carolina Supreme Court)
(d) An arbitrator selected as a partisan of a party in a multimember arbitration panel is not
prohibited from subsequently representing that party.
Comment
[1] This Rule generally parallels Rule 1.11. The term "personally and substantially" signifies that a
judge who was a member of a multimember court, and thereafter left judicial office to practice law,
is not prohibited from representing a client in a matter pending in the court, but in which the former
judge did not participate. So also the fact that a former judge exercised administrative responsibility
in a court does not prevent the former judge from acting as a lawyer in a matter where the judge
had previously exercised remote or incidental administrative responsibility that did not affect the
merits. Compare the Comment to Rule 1.11. The term "adjudicative officer" includes such officials
as judges pro tempore, referees, special masters, hearing officers and other parajudicial officers,
and also lawyers who serve as part-time judges. Compliance Canons A(2), B(2) and C of the Model
Code of Judicial Conduct provide that a part-time judge, judge pro tempore or retired judge recalled
to active service, may not "act as a lawyer in any proceeding in which he served as a judge or in
any other proceeding related thereto." Although phrased differently from this Rule, those Rules
correspond in meaning.
Select Ethics 2000 Excerpts Re ADR
(as proposed by SC Bar House of Delegates and Ethics Commission to and pending before
South Carolina Supreme Court)
[2] Like former judges, lawyers who have served as arbitrators, mediators or other third-party
neutrals may be asked to represent a client in a matter in which the lawyer participated personally
and substantially. This Rule forbids such representation unless all of the parties to the proceedings
give their informed consent, confirmed in writing. See Rule 1.0(e) and (b). Other law or codes of
ethics governing third-party neutrals may impose more stringent standards of personal or imputed
disqualification. See Rule 2.4.
[3] Although lawyers who serve as third-party neutrals do not have information concerning the
parties that is protected under Rule 1.6, they typically owe the parties an obligation of confidentiality
under law or codes of ethics governing third-party neutrals. Thus, paragraph (c) provides that
conflicts of the personally disqualified lawyer will be imputed to other lawyers in a law firm unless
the conditions of this paragraph are met.
[4] Requirements for screening procedures are stated in Rule 1.0(k). Paragraph (c)(1) does not
prohibit the screened lawyer from receiving a salary or partnership share established by prior
independent agreement, but that lawyer may not receive compensation directly related to the
matter in which the lawyer is disqualified.
[5] Notice, including a description of the screened lawyer's prior representation and of the screening
procedures employed, generally should be given as soon as practicable after the need for
screening becomes apparent.
COMMITTEE COMMENT:
The Committee recommends the Ethics 2000 language.
Select Ethics 2000 Excerpts Re ADR
(as proposed by SC Bar House of Delegates and Ethics Commission to and pending before
South Carolina Supreme Court)
RULE 2.4: LAWYER SERVING AS THIRD-PARTY NEUTRAL
(a)
A lawyer serves as a third-party neutral when the lawyer assists two or more
persons who are not clients of the lawyer to reach a resolution of a dispute or other matter
that has arisen between them. Service as a third-party neutral may include service as an
arbitrator, a mediator or in such other capacity as will enable the lawyer to assist the parties
to resolve the matter.
(b)
A lawyer serving as a third-party neutral shall inform unrepresented parties that
the lawyer is not representing them. When the lawyer knows or reasonably should know that
a party does not understand the lawyer's role in the matter, the lawyer shall explain the
difference between the lawyer's role as a third-party neutral and a lawyer's role as one who
represents a client.
Select Ethics 2000 Excerpts Re ADR
(as proposed by SC Bar House of Delegates and Ethics Commission to and pending before
South Carolina Supreme Court)
Comment
[1]
Alternative dispute resolution has become a substantial part of the civil justice system.
Aside from representing clients in dispute-resolution processes, lawyers often serve as third-party
neutrals. A third-party neutral is a person, such as a mediator, arbitrator, conciliator or evaluator,
who assists the parties, represented or unrepresented, in the resolution of a dispute or in the
arrangement of a transaction. Whether a third-party neutral serves primarily as a facilitator,
evaluator or decisionmaker depends on the particular process that is either selected by the parties
or mandated by a court.
[2]
The role of a third-party neutral is not unique to lawyers, although, in some courtconnected contexts, only lawyers are allowed to serve in this role or to handle certain types of
cases. In performing this role, the lawyer may be subject to court rules or other law that apply either
to third-party neutrals generally or to lawyers serving as third-party neutrals. Lawyer-neutrals may
also be subject to various codes of ethics, such as the Code of Ethics for Arbitration in Commercial
Disputes prepared by a joint committee of the American Bar Association and the American
Arbitration Association or the Model Standards of Conduct for Mediators jointly prepared by the
American Bar Association, the American Arbitration Association and the Society of Professionals in
Dispute Resolution.
Select Ethics 2000 Excerpts Re ADR
(as proposed by SC Bar House of Delegates and Ethics Commission to and pending before
South Carolina Supreme Court)
[3]
Unlike nonlawyers who serve as third-party neutrals, lawyers serving in this role may
experience unique problems as a result of differences between the role of a third-party neutral and
a lawyer's service as a client representative. The potential for confusion is significant when the
parties are unrepresented in the process. Thus, paragraph (b) requires a lawyer-neutral to inform
unrepresented parties that the lawyer is not representing them. For some parties, particularly
parties who frequently use dispute-resolution processes, this information will be sufficient. For
others, particularly those who are using the process for the first time, more information will be
required. Where appropriate, the lawyer should inform unrepresented parties of the important
differences between the lawyer's role as third-party neutral and a lawyer's role as a client
representative, including the inapplicability of the attorney-client evidentiary privilege. The extent of
disclosure required under this paragraph will depend on the particular parties involved and the
subject matter of the proceeding, as well as the particular features of the dispute-resolution process
selected.
[4]
A lawyer who serves as a third-party neutral subsequently may be asked to serve as a
lawyer representing a client in the same matter. The conflicts of interest that arise for both the
individual lawyer and the lawyer's law firm are addressed in Rule 1.12.
Select Ethics 2000 Excerpts Re ADR
(as proposed by SC Bar House of Delegates and Ethics Commission to and pending before
South Carolina Supreme Court)
[5]
Lawyers who represent clients in alternative dispute-resolution processes are governed
by the Rules of Professional Conduct. When the dispute-resolution process takes place before a
tribunal, as in binding arbitration (see Rule 1.0(m)), the lawyer's duty of candor is governed by Rule
3.3. Otherwise, the lawyer's duty of candor toward both the third-party neutral and other parties is
governed by Rule 4.1.
Committee Comment
The Committee recommends the adoption in toto of Rule 2.4.
“Good Faith” Sanctions
Circuit Court ADR Rule 5(a)(2):
Corporation/Insurer: “…full authority to settle the claim …”
Govt.: “…full authority to negotiate on behalf of the agency and recommend a
settlement to the appropriate decision-making body of the agency …”
Federal Court (D.S.C.): “‘Full settlement authority’ for the defendant means an
individual who can decide to offer the plaintiff a sum up to the existing demand of the
plaintiff or the policy limits of any applicable insurance policy, whichever is less. ‘Full
settlement authority’ for the plaintiff means the plaintiff himself or herself or a
representative of the plaintiff who can make a binding decision on behalf of the
plaintiff or plaintiffs.” Standing Order to Conduct Mediation, United States District
Court Judge David C. Norton, January 2002 (available at
www.scd.uscourts.gov/DOCS/DCN/omed_norton.PDF
ABA SODR: Draft Resolution On Good Faith Requirements For Mediators And
Mediation Advocates In Court-Mandated Mediation Programs prepared by the
American Bar Association’s Section on Dispute Resolution (Dec. 1, 2003).
www.abanet.org/dispute/draftres2.doc.
Useful SC Court-ADR Info
www.scbar.org/adr
ADR Rules & Forms, Regs, Searchable
Roster, Applications, FAQ’s, Links & More!
Join ADR Section, too (for Listserv, Forum,
and Network)!
Andrew M. Walsh
Dispute Resolution Director
South Carolina Bar
Phones: 803.799.6653, ext. 159
Fax: 803.799.5290
E-Mail: [email protected]
P.O. Box 608
(950 Taylor Street)
Columbia, SC
29202-0608
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