Rule 104. Code of ethics for ADR providers.
This Code applies to all arbitrators and mediators on the court roster acting pursuant to these rules and Code of Judicial Administration Rule 4-510.05. A court may impose sanctions against an ADR provider for violations of this Code which raise a substantial question as to the partiality of the arbitrator or a member of the majority of a panel, but a violation of other provisions of this Code does not establish grounds or authority for other judicial review of arbitration awards made under the court-annexed ADR program.
Canon I. ADR Providers Should Uphold The Integrity And Fairness Of The ADR Program.
(a) Alternative Dispute Resolution is an important and proven method for resolving disputes. In order for ADR to be effective, there must be broad public confidence in the integrity and fairness of the process, similar to the confidence the public has in judges who adjudicate cases in the district court of this state. Like the court's judges, ADR providers serving under the program must observe high standards of ethical conduct so that the integrity and fairness of the process will be preserved. Accordingly, ADR providers should recognize their responsibility to the court, to the public, to the parties, and to all other participants in the ADR processes. The provisions of this Code should be construed and applied to advance these objectives.
(b) For a case that is referred to arbitration or mediation, providers should accept an appointment only if they are in a position to adhere to the specific time limits for arbitration and mediation proceedings preserved by the rules.
(c) After accepting appointment to and while serving as provider for a particular case, an ADR provider should avoid entering into any financial, business, professional, family, or social relationship, or acquiring any financial or personal interest which (1) is likely to affect their impartiality or (2) might reasonably create the appearance of partiality or bias. For a reasonable time after an ADR proceeding has been concluded, the provider should avoid entering into any such relationship, or acquiring any such interest, under circumstances which might reasonably create the appearance that the provider had been influenced in the proceeding by the anticipation or expectation of the relationship or interest.
(d) Providers should conduct themselves in a manner that is fair to all parties and their counsel; they should not be swayed by outside pressure, public clamor, fear of criticism, or self-interest.
(e) Providers should neither exceed the authority delegated to them nor do less than is required to exercise that authority.
(f) Providers should make all reasonable efforts to prevent delaying tactics, harassment of parties or other participants, or other abuse of, or disruption to, the ADR processes.
(g) The ethical objectives of providers begin prior to acceptance of the appointment to a particular case and continue throughout all stages of the proceedings. In addition, wherever specifically set forth in this Code, certain ethical obligations continue even after the award in the case has been made or after the case has been successfully resolved.
(h) A provider should not directly contact a party to solicit the selection of that provider in a particular case if the party is represented by counsel.
(i) A provider should refrain from promises and guarantees of results. A provider should not advertise statistical settlement data or settlement rates.
(j) A provider should accurately represent his/her qualifications. In an advertisement or other communication, a mediator may make reference to meeting state, national, or private organizational qualifications only if the entity referred to has a procedure for qualifying ADR providers and the provider has been duly granted the requisite status.
(k) A provider should have the participants sign a written agreement to mediate their dispute.
(l) A provider should include in the participantsí written agreement to mediate a description of their fee arrangement with the provider.
Canon II. Disclosure And Disqualification.
(a) When requested to serve, ADR providers should carefully consider prior to accepting a case whether they have:
(1) any financial or personal interest in the outcome of the proceeding;
(2) any existing or past financial, business, professional, family, or social relationships which are likely to affect their impartiality or which might reasonably create an appearance of partiality or bias;
(3) any such relationships which they personally have with any party or its lawyer, or with any individual who may serve as a witness; and
(4) any such relationships involving their families, current employers, partners, or significant business associates.
(b) ADR providers should make a reasonable effort to inform themselves of any interests or relationships of the kind described in paragraph (a).
(c) The obligation to consider interests or relationships described in paragraph (a) is a continuing duty which requires an ADR provider who accepts an appointment to disclose, at any stage of the ADR proceeding, any such interests or relationships which may arise, or which are recalled or discovered.
(d) If relationships or interests exist that may create an impression of partiality or bias, but that, in the judgment of the ADR provider, pose no obstacle to objectively evaluating the case, making an arbitration award, or mediating the matter, then the provider should disclose those interests or relationships as early as possible in the course of the ADR proceedings. Such disclosure should be made to all parties and their attorneys and, where the matter is being arbitrated, to the other arbitrators.
(e) Where any ADR provider determines that existing interests and relationships preclude participation as a provider and constitute grounds for self-disqualification or recusal, the ADR provider should recuse and notify the Director of the recusal.
(f) In the event that a mediator is requested by any party to withdraw, the mediator should do so. In the event that an arbitrator is requested to withdraw by fewer than all of the parties because of alleged partiality or bias, absent a showing of good cause to the contrary, the arbitrator need not withdraw.
Canon III. ADR Providers Should Conduct The Proceedings Fairly And Diligently.
(a) ADR providers should conduct the proceedings in an evenhanded manner and treat all parties with equality and fairness at all stages of the proceedings.
(1) Impartial means free from favoritism or bias in word, action or appearance, and includes a commitment to assist all participants as opposed to any one individual.
(2) ADR providers should guard against bias or partiality based on the participantsí personal characteristics, background or performance at the proceeding.
(b) ADR providers should perform their duties diligently and conclude the case as promptly and efficiently as the circumstances reasonably permit, without compromising the interests of justice.
(c) ADR providers should be patient with and courteous to the parties, their attorneys, and any witnesses. They should encourage similar conduct by all participants in the proceedings.
(d) Unless otherwise agreed by the parties, providers should accord to all parties the right to appear in person and to be heard after due notice in writing of the date, time, and place of hearing.
(e) ADR providers should not deny any party the opportunity to be represented by counsel.
(f) Where any party fails to appear, arbitrators may proceed with scheduled ADR proceedings only after ensuring that appropriate written notice was provided to the absent party.
(g) If a panel is selected for arbitration, the chair should permit and encourage all arbitrators to participate equally in the arbitration process.
(h) Mediators shall inform the participants that they may withdraw from mediation at any time and are not required to reach an agreement. However, if the mediation is conducted pursuant to a mandatory mediation program, the mediator shall inform the parties of any participation requirements of that program.
Canon IV. ADR Providers Should Be Faithful To The Relationship Of Trust And Confidentiality Inherent In That Appointment.
(a) Maintaining confidentiality encourages candor, a full exploration of issues, and the integrity of the ADR program. Ethical standards require strict compliance with the promise of confidentiality as an integral element of the ADR process. Participation as a provider assumes building a relationship with the parties that is based on trust. At no time should any provider use confidential information acquired during ADR proceedings to gain advantage, personal or otherwise, or to adversely affect the interests of any party or any other individual or entity.
(b) The provider should discuss the providersí and the participantsí expectations of confidentiality prior to undertaking the process. Prior to undertaking the process the provider should inform the participants of applicable limitations of confidentiality such as statutory, judicial or ethical reporting requirements.
(c) In mediation, the written agreement to mediate should include provisions concerning confidentiality.
(d) ADR providers should not utilize any information disclosed during the ADR processes for private gain or personal advantage. Neither should providers seek publicity from participation in a particular ADR proceeding to enhance their personal or professional position or status.
(e) Unless otherwise agreed by the parties, providers should keep confidential all matters relating to the proceedings and decisions in which they participate. No information about evidence produced, admissions, or stipulations made, legal positions taken, reasons for the amount or nature of all arbitration award, unless set forth therein, or conclusions as to the credibility of any witness should be disclosed to anyone who is not a party to the arbitration proceeding.
(f) No arbitrator is at liberty to inform anyone of, or to discuss with anyone other than the parties and other arbitrators, the award or decision.
(g) Mediators should preserve and maintain the confidentiality of all mediation proceedings. They should not disclose or discuss any information about or related to the proceedings to anyone, including the assigned judge. Mediators should keep confidential from other parties any information obtained in individual caucuses unless the party to the caucus permits disclosure. They should secure and ensure the confidentiality of mediation proceeding records that they do not destroy. They should render anonymous all identifying information when mediation proceeding materials are used for research, training, or statistical compilations.
(h) If subpoenaed or otherwise given notice to testify or to produce documents the mediator should inform the participants immediately. The mediator should not testify or provide documents in response to a subpoena or other notice without an order of the court if the mediator reasonably believes doing so would violate an obligation of confidentiality to the participants.
Canon V. Prohibition Against Discrimination
In their ADR practice, ADR providers should not practice, condone, facilitate, or promote any form of invidious discrimination. ADR providers should be aware of cultural differences and how such differences may affect a party's values and negotiating style. Providers should avoid condoning or displaying stereotypical attitudes toward parties and their attorneys in ADR proceedings.
Canon VI. An Arbitrator Should Make Decisions In A Just, Independent, And Deliberate Manner.
(a) An arbitrator should decide all matters justly, exercising independent judgment; no arbitrator should permit outside pressure to affect or bear upon its decision.
(b) Arbitrators should not delegate the obligation to make an appropriate determination in the case to any other person or authority.
Canon VII. When Communicating With The Parties, Arbitrators Should Avoid Impropriety And The Appearance of Impropriety.
(a) In the absence of a stipulation to the contrary, arbitrators should not discuss a case with any party in the absence of any other party, except that they may discuss with a party such matters as setting the time and place of hearings or making other arrangements for the proceedings.
(b) Whenever an arbitrator communicates in writing with one party, that arbitrator or mediator should at the same time transmit a copy of the communication to each other party and the other arbitrators. Whenever an arbitrator receives from one party any case-related written communication which has not been served on all other parties, that arbitrator promptly should provide the same to the other parties and to the other arbitrators.
Canon VIII. Process And Terms Of Settlement In Mediation.
(a) As self-determination is a fundamental principle of mediation, the mediator recognizes that the primary responsibility for the resolution of a dispute and the forging of a settlement agreement rests with the parties and their attorneys if represented. The mediatorís obligation is to assist the disputants to reach an informed and voluntary agreement.
(b) Primary responsibility for the resolution of a dispute and the forging of a settlement agreement rests with the parties and their attorneys. The mediator's obligation is to assist the disputants to reach an informed and voluntary settlement. In the course of the mediation process, no mediator shall coerce a settlement or otherwise pressure any party or the attorneys for any party into accepting an agreement. Nor shall any mediator make for any party substantive decisions affecting the matter at issue. Mediators may make suggestions and may draft proposals for consideration by the parties and their attorneys, but all decisions are to be made voluntarily and without duress on the part of the mediator by the parties in consultation with their attorneys.
(c) Mediators should not attempt to usurp or otherwise assume the role of counsel for any party.