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MSBA News

ADR Tip of the Month - May 2015

MAY ADR Tip of the Month

This practice tip is drawn from the MSBA ADR Section's May 12, 2015, ADR CLE, " ADR Ethics in Practice”.  

Key Takeaways:

  • Ethical Standards provide the floor below which practitioners should not go -- practitioners should strive for best practice not just (mere) compliance with the ethical standards.

  • When a mediator is faced with clients who want to talk about things that go beyond the legal issues, that don’t seem directly connected to possible settlement terms, or even that include the expression of hostility, the mediator should remember that the highest value of the process is party self-determination.  [Rule 114 Appendix  Mediation Rule 1 Self-Determination]  The mediator’s discomfort with conflict or desire to appear in control should not cause the mediator to undermine the parties’ self-determination of what they want to talk about and how they want to talk about it.

  • Mediators who are also licensed to practice law should keep in mind how the Minnesota Rules of Professional Conduct (governing lawyers) intersect with their ethical obligations as mediators under Rule 114.  In particular, rule 8.3 (Reporting Professional Misconduct); rule 1.12 (Former Judge, Arbitrator, Mediator, or Other Third Party Neutral) and rule 2.4 (Lawyer Serving as Third-Party Neutral). 

Practice Tip written by Program Moderators Sharon Press, Hamline University Dispute Resolution Institute and Dan Simon, Simon Mediation.