MEDIATOR CONFIDENTIALITY IN GOVERNMENT DISPUTE RESOLUTION

 

RESOURCE LIST

STATUTES AND PUBLIC DOCUMENTS

Administrative Dispute Resolution Act, 5 U.S.C. Sections 571-584 (1986).

Administrative Conference of the United States, Recommendation 88-11, Encouraging Settlements by Protecting Mediator Confidentiality, 1 CFR '305.88-11 (1993); and ACUS Recommendation 95-6, The Freedom of Information Act and Confidentiality under the Administrative Dispute Resolution Act (1995).

Diane R. Liff, The Confidentiality Provisions of the Administrative Dispute Resolution Act of 1996: Text and Commentary, October 1998.

In re Grand Jury Investigation, 148 F.3d 487 (5th Cir. 1998).

Reply brief for the United States, submitted by the United States Attorney in In re Grand Jury Investigation, January 1998.

National Conference of Commissioners on Uniform State Laws, Uniform Mediation Act, April 1999 (draft) www.law.upenn.edu/library/ulc/ulc.htm.

U.S. Institute for Environmental Conflict Resolution, Proposed policy and rule on confidentiality, May 1999.

STANDARDS OF PROFESSIONAL CONDUCT

AAA, ABA, SPIDR, The Standards of Conduct for Mediators, 1994.

Society of Professionals in Dispute Resolution, Ethical Standards of Professional Responsibility, June 1986.

CPR - Georgetown Commission on Ethics and Standards in ADR, Principles for ADR Provider Organizations, (1999, or most recent available draft).

CPR - Georgetown Commission on Ethics and Standards in ADR, Proposed Model Rule for the Lawyer as Third-Party Neutral (April 1999)(draft).

SPIDR Environmental/Public Policy Sector, Best Practices for Government Agencies: Guidelines for Using Collaborative Agreement-Seeking Processes, January 1997.

U.S. Postal Service, Code of Ethics for Mediators (1998).

LAW REVIEW ARTICLES AND COLLECTIONS

ABA Section of Dispute Resolution, Dispute Resolution magazine, issue on Confidentiality in Mediation, Winter 1998.

Journal of Dispute Resolution, Symposium issue on The Dilemmas of Mediation Practice, Volume 1994, No. 1.

Robert A. Baruch Bush, The Dilemmas of Mediation Practice: A Study of Ethical Dilemmas and Policy Implication, Report to NIDR (1992).

John Feerick, Toward Uniform Standards of Conduct for Mediators, 38 South Texas Law Review 455 (1997).

Sarah Grebe, et al, A Model for Ethical Decision Making in Mediation, 7 Mediation Quarterly 133 (1989).

Mark Grunewald, The Freedom Of Information Act and Confidentiality under the Administrative Dispute Resolution Act, Report to the Administrative Conference of the U.S., 1994-95 ACUS 557, 9 Admin. L.J. 985 (1996).

Philip J. Harter, Neither Cop Nor Collection Agent: Encouraging Administrative Settlements by Ensuring Mediator Confidentiality, Report to the Administrative Conference of the U.S., 1988 ACUS 839, 1 Admin. L.J. 315 (1989).

Carrie Menkel-Meadow, Ethics in Alternative dispute Resolution: New Issues, No Answers for the Adversary Conception of Lawyers' Responsibilities, 38 South Texas Law Review 407 (1997).

Leonard Riskin, Toward New Standards for the Neutral Lawyer in Mediation, 26 Arizona Law Review 329 (1984).

Edward F. Sherman, Confidentiality in ADR Proceedings: Policy Issues Arising from the Texas Experience, 38 South Texas Law Review 541 (1997).

Peter Marksteiner, How Confidential Are Federal Employment-Related Dispute Mediations?, 14 Ohio State Journal on Dispute Resolution 89 (1998).

University of Texas Center for Public Policy Dispute Resolution, What Would You Do?: Handling Ethical Issues in Public and Private Mediation, Course materials, June 1998.

 

SHORTER ARTICLES

Jonathan D. Asher, Focus on Fairness: When Low-Income Consumers Face Court-Mandated ADR, Alternatives to the High Cost of Litigation, November 1996.

Robert A. Baruch Bush, Defining the Job of Mediators: ADR's Benefits and Mediators' Ethical Dilemmas, NIDR Forum, Summer-Fall 1993.

 

John Bickerman, Handling Potential Conflicts in Mediation, Alternatives to the High Cost of Litigation, July-August 1996.

 

Jay Folberg & Alison Taylor, "Ethical, Professional, and Legal Issues" from Mediation: A Comprehensive Guide to Resolving Conflicts Without Litigation, Jossey-Bass Publishers, 1984.

 

Christopher Honeyman, Bias and Mediators' Ethics, Negotiation Journal, April 1986.

Duane W. Krohnke, Minnesota Takes Up ADR Ethics Challenge, Alternatives to the High Cost of Litigation, November 1996.

Harry. N. Mazadoorian, Disclosure Questions ADR Counsel Should Ask When Screening and Selecting a Neutral, Alternatives to the High Cost of Litigation, September 1996.

Carrie Menkel-Meadow, Conflicts and Mediation Practice, Alternatives to the High Cost of Litigation, November 1996.

Carrie Menkel-Meadow, Professional Responsibility for Third-Party Neutrals, Alternatives to the High Cost of Litigation, September 1993.

Charles Pou, Ghandi Meets Elliott Ness: 5th Circuit Ruling Raises Concerns about Confidentiality in Federal Agency ADR, Dispute Resolution, Winter 1998.

Richard C. Reuban, Model Ethics Rules Limit Mediator Role, ABA Journal at 25, January 1996.

INTERNET RESOURCES

 

MODEL STANDARDS OF PRACTICE FOR MEDIATORS

"Conflict of Interest in Mediation: Selected Provisions and Proposals Compiled by CPR"

http://www.cpradr.org/conflict.htm

"Model Standards of Practice for Mediators of the ABA, SPIDR and AAA" www.mediate.com/ethics/spidrstd.cfm

 

"Model Standards of Conduct for Mediators," The American Arbitration Association, the American Bar Association, and the Society of Professionals in Dispute Resolution

http://www.adr.org/standard.html

"The Code of Ethics for Arbitrators in Commercial Disputes," American Bar Association and the American Arbitration Association

http://www.adr.org/code.html

 

"Code of Professional Responsibility for Arbitrators of Labor-Management Disputes," National Academy of Arbitrators, American Arbitration Association, and the Federal Mediation and Conciliation Service http://www.adr.org/labor_code.html

"Ethical Standards of Professional Responsibility," SPIDR www.spidr.org/ethic.htm

"Model Standards of Conduct for Mediators," Mediation Council of Illinois

www.mediate.com/ethics/mcillstd.cfm

"North Carolina State Mediation Standards of Practice," North Carolina Dispute Resolution Commission

www.mediate.com/ethics/ncmastd.cfm

"Oregon State Mediation Standards of Practice," Oregon Mediation Association

www.mediate.com/ethics/omastd.cfm

ARTICLES AND REPORTS

" Administrative Conference of the United States (ACUS), The Freedom of Information Act and Confidentiality Under the Administrative Dispute Resolution Act (April 1995)," U.S Air Force ADR Program http://www.adr.af.mil/afadr/library/docs/scanning/Freedom1/

"National Academy of Arbitrators Formal Advisory Opinions" http://www.adr.org/labor/opinion_frames.html

"ADR Ethics Project," CPR Institute for Dispute Resolution and Georgetown University Law Center

http://www.cpradr.org/ethics.htm

"Ethical Quandaries," American Bar Association Section of Dispute Resolution

http://www.abanet.org/dispute/ethical.html

"Ethical and Practical Considerations"

http://www.adrr.com/adr1/essayh.htm

"First Considerations"

http://www.adrr.com/adr2/ethics1.htm

"Ethics and the Role of a Mediator"

http://adrr.com/adr2/essayp.htm

Carrie Menkel-Meadow, "Ethics in ADR Representation: A Road Map of Critical Issues," Dispute Resolution Magazine, WINTER 1997 www.abanet.org/dispute/magazine/win97cmm.html

Mattox Hair, Sharon Press and Brooks Rathet, "Ethics Within the Mediation Process," Summer 1996 ADR Currents

http://www.adr.org/currents/cur0696-2.html

Joe Hardegree, "The Principles of Mediation and the Future of Ethics," Speech at Annual Conference of Northern California Mediation Association, March 22, 1997

http://www.mediate.com/articles/index.cfm

D. Alan Rudlin, Greer D. Saunders and Barbara L. Hulburt, "Attorney-Mediators Face Important Ethical Issues," The National Law Journal (p. D09) Monday, November 18, 1996

http://www.ljextra.com/practice/arbitration/medeth.htm

OTHER SOURCES

"Bibliography of Selected Readings"

http://www.cpradr.org/readbibl.htm

"Arbitration and Mediation," FedLaw

http://fedlaw.gsa.gov/legal89.htm