Rule104. Code of ethics for ADR providers.
This Code applies to all arbitrators andmediators on the court roster acting pursuant to these rules and Code ofJudicial Administration Rule 4-510.05. A court may impose sanctions against anADR provider for violations of this Code which raise a substantial question asto the partiality of the arbitrator or a member of the majority of a panel, buta violation of other provisions of this Code does not establish grounds orauthority for other judicial review of arbitration awards made under thecourt-annexed ADR program.
Canon I. ADR Providers Should Uphold TheIntegrity And Fairness Of The ADR Program.
(a) Alternative Dispute Resolution is animportant and proven method for resolving disputes. In order for ADR to beeffective, there must be broad public confidence in the integrity and fairnessof the process, similar to the confidence the public has in judges whoadjudicate cases in the district court of this state. Like the court's judges,ADR providers serving under the program must observe high standards of ethicalconduct 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 ADRprocesses. The provisions of this Code should be construed and applied toadvance these objectives.
(b) For a case that is referred toarbitration or mediation, providers should accept an appointment only if they arein a position to adhere to the specific time limits for arbitration andmediation proceedings preserved by the rules.
(c) After accepting appointment to and whileserving as provider for a particular case, an ADR provider should avoidentering into any financial, business, professional, family, or socialrelationship, or acquiring any financial or personal interest which (1) islikely to affect their impartiality or (2) might reasonably create theappearance of partiality or bias. For a reasonable time after an ADR proceedinghas been concluded, the provider should avoid entering into any suchrelationship, or acquiring any such interest, under circumstances which mightreasonably create the appearance that the provider had been influenced in theproceeding by the anticipation or expectation of the relationship or interest.
(d) Providers should conduct themselves in amanner that is fair to all parties and their counsel; they should not be swayedby outside pressure, public clamor, fear of criticism, or self-interest.
(e) Providers should neither exceed theauthority delegated to them nor do less than is required to exercise thatauthority.
(f) Providers should make all reasonableefforts 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 providersbegin prior to acceptance of the appointment to a particular case and continuethroughout all stages of the proceedings. In addition, wherever specificallyset forth in this Code, certain ethical obligations continue even after theaward in the case has been made or after the case has been successfullyresolved.
(h) A provider should not directly contact aparty to solicit the selection of that provider in a particular case if theparty is represented by counsel.
(i) A providershould refrain from promises and guarantees of results. A provider should notadvertise statistical settlement data or settlement rates.
(j) A provider should accurately representhis/her qualifications. In an advertisement or other communication, a mediatormay make reference to meeting state, national, or private organizationalqualifications only if the entity referred to has a procedure for qualifyingADR providers and the provider has been duly granted the requisite status.
(k) A provider should have the participantssign a written agreement to mediate their dispute.
(l) A provider should include in theparticipants? written agreement to mediate a description of their feearrangement with the provider.
Canon II. Disclosure And Disqualification.
(a) When requested to serve, ADR providersshould carefully consider prior to accepting a case whether they have:
(1) any financial or personal interest inthe outcome of the proceeding;
(2) any existing or past financial,business, professional, family, or social relationships which are likely toaffect their impartiality or which might reasonably create an appearance ofpartiality or bias;
(3) any such relationships which theypersonally have with any party or its lawyer, or with any individual who mayserve as a witness; and
(4) any such relationships involving theirfamilies, current employers, partners, or significant business associates.
(b) ADR providers should make a reasonableeffort to inform themselves of any interests or relationships of the kinddescribed in paragraph (a).
(c) The obligation to consider interests orrelationships described in paragraph (a) is a continuing duty which requires anADR provider who accepts an appointment to disclose, at any stage of the ADRproceeding, any such interests or relationships which may arise, or which arerecalled or discovered.
(d) If relationships or interests exist thatmay create an impression of partiality or bias, but that, in the judgment ofthe ADR provider, pose no obstacle to objectively evaluating the case, makingan arbitration award, or mediating the matter, then the provider shoulddisclose those interests or relationships as early as possible in the course ofthe ADR proceedings. Such disclosure should be made to all parties and theirattorneys and, where the matter is being arbitrated, to the other arbitrators.
(e) Where any ADR provider determines thatexisting interests and relationships preclude participation as a provider andconstitute grounds for self-disqualification or recusal, the ADR providershould recuse and notify the Director of the recusal.
(f) In the event that a mediator isrequested by any party to withdraw, the mediator should do so. In the eventthat an arbitrator is requested to withdraw by fewer than all of the partiesbecause of alleged partiality or bias, absent a showing of good cause to thecontrary, the arbitrator need not withdraw.
Canon III. ADR Providers Should Conduct TheProceedings Fairly And Diligently.
(a) ADR providers should conduct theproceedings in an evenhanded manner and treat all parties with equality andfairness at all stages of the proceedings.
(1) Impartial means free from favoritism orbias in word, action or appearance, and includes a commitment to assist allparticipants as opposed to any one individual.
(2) ADR providers should guard against biasor partiality based on the participants? personal characteristics, backgroundor performance at the proceeding.
(b) ADR providers should perform theirduties diligently and conclude the case as promptly and efficiently as thecircumstances reasonably permit, without compromising the interests of justice.
(c) ADR providers should be patient with andcourteous to the parties, their attorneys, and any witnesses. They shouldencourage 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 beheard after due notice in writing of the date, time, and place of hearing.
(e) ADR providers should not deny any partythe opportunity to be represented by counsel.
(f) Where any party fails to appear,arbitrators may proceed with scheduled ADR proceedings only after ensuring thatappropriate 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 inthe arbitration process.
(h) Mediators shall inform the participantsthat they may withdraw from mediation at any time and are not required to reachan agreement. However, if the mediation is conducted pursuant to a mandatorymediation program, the mediator shall inform the parties of any participationrequirements of that program.
Canon IV. ADR Providers Should Be FaithfulTo The Relationship Of Trust And Confidentiality Inherent In That Appointment.
(a) Maintaining confidentiality encouragescandor, a full exploration of issues, and the integrity of the ADR program.Ethical standards require strict compliance with the promise of confidentialityas an integral element of the ADR process. Participation as a provider assumesbuilding a relationship with the parties that is based on trust. At no timeshould any provider use confidential information acquired during ADRproceedings to gain advantage, personal or otherwise, or to adversely affectthe interests of any party or any other individual or entity.
(b) The provider should discuss theproviders? and the participants? expectations of confidentiality prior toundertaking the process. Prior to undertaking the process the provider shouldinform the participants of applicable limitations of confidentiality such asstatutory, judicial or ethical reporting requirements.
(c) In mediation, the written agreement tomediate should include provisions concerning confidentiality.
(d) ADR providers should not utilize anyinformation disclosed during the ADR processes for private gain or personaladvantage. Neither should providers seek publicity from participation in aparticular ADR proceeding to enhance their personal or professional position orstatus.
(e) Unless otherwise agreed by the parties,providers should keep confidential all matters relating to the proceedings anddecisions in which they participate. No information about evidence produced,admissions, or stipulations made, legal positions taken, reasons for the amountor nature of all arbitration award, unless set forth therein, or conclusions asto the credibility of any witness should be disclosed to anyone who is not aparty to the arbitration proceeding.
(f) No arbitrator is at liberty to informanyone of, or to discuss with anyone other than the parties and otherarbitrators, the award or decision.
(g) Mediators should preserve and maintainthe confidentiality of all mediation proceedings. They should not disclose ordiscuss any information about or related to the proceedings to anyone,including the assigned judge. Mediators should keep confidential from other partiesany information obtained in individual caucuses unless the party to the caucuspermits disclosure. They should secure and ensure the confidentiality ofmediation proceeding records that they do not destroy. They should renderanonymous all identifying information when mediation proceeding materials areused for research, training, or statistical compilations.
(h) If subpoenaed or otherwise given noticeto testify or to produce documents the mediator should inform the participantsimmediately. The mediator should not testify or provide documents in responseto a subpoena or other notice without an order of the court if the mediatorreasonably believes doing so would violate an obligation of confidentiality tothe participants.
Canon V. Prohibition Against Discrimination
In their ADR practice, ADR providers shouldnot practice, condone, facilitate, or promote any form of invidiousdiscrimination. ADR providers should be aware of cultural differences and howsuch differences may affect a party's values and negotiating style. Providersshould avoid condoning or displaying stereotypical attitudes toward parties andtheir attorneys in ADR proceedings.
Canon VI. An Arbitrator Should MakeDecisions In A Just, Independent, And Deliberate Manner.
(a) An arbitrator should decide all mattersjustly, exercising independent judgment; no arbitrator should permit outsidepressure to affect or bear upon its decision.
(b) Arbitrators should not delegate theobligation to make an appropriate determination in the case to any other personor authority.
Canon VII. When Communicating With TheParties, Arbitrators Should Avoid Impropriety And The Appearance ofImpropriety.
(a) In the absence of a stipulation to thecontrary, arbitrators should not discuss a case with any party in the absenceof any other party, except that they may discuss with a party such matters assetting the time and place of hearings or making other arrangements for theproceedings.
(b) Whenever an arbitrator communicates inwriting with one party, that arbitrator or mediator should at the same timetransmit a copy of the communication to each other party and the otherarbitrators. Whenever an arbitrator receives from one party any case-relatedwritten communication which has not been served on all other parties, thatarbitrator promptly should provide the same to the other parties and to theother arbitrators.
Canon VIII. Process And Terms Of SettlementIn Mediation.
(a) As self-determination is a fundamentalprinciple of mediation, the mediator recognizes that the primary responsibilityfor the resolution of a dispute and the forging of a settlement agreement restswith the parties and their attorneys if represented. The mediator?s obligationis to assist the disputants to reach an informed and voluntary agreement.
(b) Primary responsibility for theresolution of a dispute and the forging of a settlement agreement rests withthe parties and their attorneys. The mediator's obligation is to assist thedisputants to reach an informed and voluntary settlement. In the course of themediation process, no mediator shall coerce a settlement or otherwise pressureany party or the attorneys for any party into accepting an agreement. Nor shallany mediator make for any party substantive decisions affecting the matter at issue.Mediators may make suggestions and may draft proposals for consideration by theparties and their attorneys, but all decisions are to be made voluntarily andwithout duress on the part of the mediator by the parties in consultation withtheir attorneys.
(c) Mediators should not attempt to usurp orotherwise assume the role of counsel for any party.