Court-Annexed ADR in South Carolina:

Fact & FictionAbout Certification and Rules

Andrew Walsh, South Carolina BarUSC Law School, ADR Course (Laws 629)

Columbia, SCMonday, March 18, 2005

Useful SC Court-ADR Info

www.scbar.org/adrADR 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 P.O. Box 608South Carolina Bar   (950 Taylor Street)Phones: 803.799.6653, ext. 159 Columbia, SC Fax: 803.799.5290 29202-0608

E-Mail: andrew.walsh@scbar.org

OUTLINE

ADR CommissionCertificationADR Rules

CurrentProposedEthics

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”.

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.

An ADR Quiz: True or False? 13 Common Misconceptions (cont’d)

Neutral Certificates, by type

Of the 996 Certificates Active as of 3/15/05:

Circuit Court Arbitrators

29%

Circuit Court Mediators

49%

Family Court Mediators

22%

Certification Stats

Select Statistics Regarding Neutrals Population as of 3/15/05

      Comments

Persons In Database   931All applicants, regardless of application status (accepted, denied, inactive,

withdrawn or pending).

Active Certificates   996

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.

Circuit Court Arbitrators 287  

Circuit Court Mediators 487  

Family Court Mediators 222  

Non-Attorneys with an active FCM Certificate

  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 DistributionCCA CCM FCM

Abbeville 20 46 13Aiken 19 58 15Allendale 16 51 9Anderson 43 98 43Bamberg 15 43 9Barnwell 14 42 11Beaufort 37 94 24Berkeley 48 94 34Calhoun 21 53 13Charleston 83 182 58Cherokee 23 56 17Chester 15 48 8Chesterfield 13 36 12Clarendon 22 47 11Colleton 40 87 22Darlington 27 50 18Dillon 20 47 12Dorchester 44 88 38Edgefield 22 46 15Fairfield 27 59 15Florence 64 105 34Georgetown 44 91 24Greenville 73 155 67Greenwood 26 60 17Hampton 23 56 12Horry 56 110 33Jasper 23 65 18Kershaw 30 63 12Lancaster 19 46 17Laurens 34 77 28Lee 24 46 13Lexington 78 139 45Marion 29 56 17Marlboro 15 41 9McCormick 21 42 11Newberry 30 67 23Oconee 24 66 23Orangeburg 28 59 13Pickens 33 82 37Richland 96 177 48Saluda 23 50 17Spartanburg 43 100 43Sumter 46 83 31Union 20 53 18Williamsburg 22 45 10York 24 52 17Statewide 10 31 6TOTAL (not additive) 287 487 222

Active Board-Certified Neutrals Available in Each SC County(Approximation -- see Notes)(as of 12/16/04 during recertification process)

2. Figures are not additive, since one neutral can have multiple certificates, or have agreed to be available in multiple counties. (E.g., John Doe might be willing to serve as a CCA and FCM in Greenville county only, but as a CCM in Greenville, Anderson,

Richland and Lexington counties.)

1. Abbreviations:CCA = Circuit Court ArbitratorCCM = Circuit Court MediatorFCM = Family Court Mediator

3. Tentative figures; based on inherited database undergoing updating and verification, including new data via recertification

process.

NOTES:

4. These are neutrals willing to serve in each county; they may or may not be a resident of the county in which they are willing to

serve.

5. Persons indicating willingness to serve "Statewide" (see penultimate row of table) are already included in each county listed. (E.g., 10 of the 21 persons listed as willing to serve as

CCA in McCormick County are persons willing to serve as CCA in all counties).

“The ADR Rules”

Rule 422, SCACRADR Commission RegsCircuit Court ADR Rules

Greenville/Anderson Co. Standing Orders (“Modified Rules”)

Family Court Mediation RulesGreenville/Anderson Co. Standing Orders (“Modified Rules”)

EthicsStandards of Conduct for MediatorsCode 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 <= $25kModified 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 RosterModified 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 neutralConfidential communications per signed agreement. (Less so arbs.)Finalize agreement:

on the spot, if informalBy attorneys, if formalNeutrals says who files

CCRule 6: Party/Atty Duties-Arb

Physical attendance: same as mediation, but no insurance rep or “full authority to settle” requirementmemos allowed, but not ex parteMust cooperate with neutralNo confidentiality provision as in mediation

CC Rule 7: Arb Hearing, Award

Hearing similar to summary bench trials:Can compel/subpoena sworn witnesses/documentsArbitrator has trial-judge powers, except contemptEvidence law guide only, except privilege appliesNo ex parte communications with arbitratorTwo-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 MediateCaucusConfidentiality

Privilege preservedNot WitnessImmune

Stay ImpartialTimely Declare ImpasseReport 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 costNo Caucus and limited Confidentiality

Arbitrator cannot be compelled or subpoenaedDox to arbitrator as arbitrator are confidential

Stay Impartial; disclose conflictsTimely file award and any required statsAbsolute immunity

CC Rule 10: Compensation

AMOUNTSelected = market rate/terms

Appointed =• $125/hour cap

• Actual and Necessary expenses

• 1 hour cap on prep time

• No travel time

PAYMENTEqual 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 quizDecert 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 disciplineBoard 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 soonerStart w/i 30 days of selection/appointment of mediatorFinish w/i 90 days of first conference

Also:Case cannot be called to trial during that timeExtension allowed if by motion and good cause shownAttorneys 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 harmExpressly 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 mediatorDoes 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 languageConfidentiality 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 settleNeed not be willing to settle, only able and in attendance.Agreements must be reduced to writingParties free to file or not to file agreementMediator 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 neutralappointed mediators no more than $175/hour, with a $50 cap on expenses.

Appointed mediators:cannot be compensated for their travel timecan 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: ArbitrationArbitration 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 hearingMediator 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, Andrew.walsh@scbar.org, 803-799-6653, 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 attorney-neutrals. 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.orgProposed 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 third-party 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 court-connected 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 CommentThe 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.PDFABA 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/adrADR 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 P.O. Box 608South Carolina Bar   (950 Taylor Street)Phones: 803.799.6653, ext. 159 Columbia, SC Fax: 803.799.5290 29202-0608

E-Mail: andrew.walsh@scbar.org