Article by Carol J. Marshall

As the Internet began to be viewed more and more as an essential part of everyday life, rather than as some sort of quirky notion embraced by a few weird individualists, it also became subject to greater scrutiny by those charged with, or self-appointed to, the protection of the public. Much the same thing has been happening to ADR (alternative dispute resolution) When I started serving as an arbitrator and mediator many years ago, few people were informed about ADR processes and, while arbitration already had a sizeable following, few people were interested in submitting their conflicts to mediation. All that has changed and, with the rising popularity of ADR have come cries for greater scrutiny, imposition of standards, new legislation and more intense oversight. Greater oversight of ADR is welcomed by some, scorned by others, and feared by those who worry that the very characteristics which made ADR a haven for those trying to escape from the "system" will be eradicated by over-zealous control mechanisms.

The news on this subject today is that the California Judicial Council has just approved new standards for neutral arbitrator ethics in contractual arbitrations and standards of conduct for mediators in court-sponsored mediation programs (in civil cases).

The arbitrator standards will be effective on July 1, 2002, with a delay to July 1, 2003 with regard to disclosure requirements for provider organizations, because of some pending legislation. Stringent disclosure requirements will be imposed on arbitrators, which does not seem all that unreasonable given that arbitrators are supposed to be entirely neutral. However, the standards do not require similar disclosures from parties and their attorneys, who are often well aware of potential arbitrator conflicts and other matters which should be disclosed to the other party, but which may not be recognized by the arbitrator who is not armed with as many facts about the parties and counsel as they themselves have. This may be a big flaw in a scheme designed to protect the parties and insure that arbitrators truly are neutral.

The new mediator standards will not be effective until Jan. 1, 2003. They do not, for the most part, seem to require anything which honest mediators don't already do: comply with confidentiality laws, disclose expertise and competency, market using only true and accurate statements, and so forth. The one issue of concern may be the requirement that mediators remain impartial in the conduct of the mediation. If that can be taken literally, it is entirely reasonable and what the parties would expect of a professional mediator: a process in which everyone is treated impartially and fairly. However, there has been ongoing discussion among mediators about whether the same stringent neutrality required of arbitrators is a necessary requirement for mediators, who have no power to render a binding decision. If the new mediator standards for court-related mediation require absolute neutrality rather than just impartial conduct, that would end the discussion with regard to one type of mediation. Stay tuned . .

Carol Marshall

April 26, 2002