Ethics and the attorney as mediator or third party neutral

FICC Quarterly, Summer 2001 by Lanzone, Anthony M

VII.

UNIFORM ARBITRATION ACT

The National Conference of Commissioners on Uniform State Laws (NCCUSL) voted to adopt the Revised Uniform Arbitration Act (RUAA), which has been offered as a model act for review and adoption by legislative bodies nationwide. There is some similarity between the conflict and disclosure requirements of the Uniform Mediation Act and the RUAA disclosure requirements. Section 12(a) of the RUAA provides:

Before accepting appointment, an individual who is requested to serve as an arbitrator, after making a reasonable inquiry, shall disclose to all parties to the agreement to arbitrate and arbitration proceeding and to any other arbitrators any known facts that a reasonable person would consider likely to affect the impartiality of the arbitrator in the arbitration proceeding ...11

Facts that could affect the outcome might include: individual interest, personal or financial, in the outcome of the arbitration or failure to reveal existing or past relationships with any of the parties or their counsel or representatives, witnesses or the other members of the panel."

Under the terms of Section 12(e), "[a]n arbitrator appointed as a neutral who does not disclose a known, direct, and material interest in the outcome of the arbitration proceeding or a known, existing, and substantial relationship with a party is presumed to act with evident partiality under section 23(a)(2)."'3 Likewise, Section 23 prescribes that awards may be vacated under certain conditions:

(a) Upon [motion] of a party to the arbitration proceeding, the court shall vacate an award if:

(2) THERE WAS:

(A) evident partiality by an arbitrator appointed as a neutral;

(B) corruption by an arbitrator, or

(C) misconduct by an arbitrator prejudicing the rights of a party to the arbitration proceeding.14

Accordig, a court might sanction nondisclosure by vacating the award.15

IX.

CONCLUSION

The universe for identifying potential conflicts is greater for the lawyer than for the non-lawyer. The lawyer must make a diligent effort to avoid accepting any appointment that involves the same subject matter currently or formerly handled by the lawyer or the lawyer's firm.

In this regard, the American Bar Association's expanded ethical standard for the lawyer neutral, as proposed, will offer more suitable guidelines by which lawyer neutrals can measure their activities. Regardless of whether the mediator is a lawyer, however, conflicts of interest, ethical considerations, model rules and Acts, and general ADR tactics should be understood and employed by any neutral to insure a successful mediation.

1American Bar Association http://www.abanet.org/dispute/assoc.html. 2949 P.2d 1 (Cal. 1998).

(3)537 F. Supp. 613 (S.D.N.Y. 1982).

4'Examples include Rule 12 of the American Arbitration Association Commercial Mediation Rules; the Alternate Dispute Resolution Act of 1998, which requires all federal district courts to operate ADR programs, including mediation, and which provides in Section 652(d) that each district court must create a local rule governing confidentiality; Florida Rules for Certified and Court Appointed Mediators Rule 10.360; the Federal Administrative Dispute Resolution Act of 1996 (ADRA), and the American with Disabilities Act Mediation Guidelines. See http://www.cardozo.yu/cojcr/lines.htm.