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ADR Resources - Ethics

Opinion of the Alabama Supreme Court Commission on Dispute Resolution

OPINION 001-13
Opinion of the Alabama Supreme Court Commission on Dispute Resolution

The Commission considered your request for an ethics opinion at its meeting on June 28, 2013.

You state that a judge requested that any mediated agreement include the following language:

WAIVER OF DEFENDANT

The undersigned Defendant further waives any notice required by law as a condition precedent to taking of depositions in any way permitted by law and the rules of this Court; and specifically agrees that depositions may be taken herein by affidavit before any Notary Public or other officer authorized to administer oaths and when so taken may be used like other depositions, as provided by Rules 28 and 29 of Alabama Rules of Civil Procedure, and hereby consents that this cause proceed to final judgment without further or other notice whatever to said Defendant.

Your questions are:
  1. Is the inclusion of this paragraph in the mediated agreement, when requested by the court, ethical?
     
  2. If I prepare this as a separate document to be signed at mediation, is this the preparation of pleadings which is unethical?
     
  3. If the inclusion in the agreement and the preparation of separate document is unethical, how do you suggest that I comply with the instructions of the court?

The Commission opines that a mediator cannot coerce a party into entering a settlement agreement or require the parties to include particular language in the agreement. See Alabama Code of Ethics for Mediators, Standard 4 (b) (as amended through June 1, 1997). Although inclusion of the statement in a memorandum of settlement may not be substantive coercion, the Commission opines it runs afoul of the broad principle of self-determination that is the bedrock of mediation. Therefore, the answer to your first question is No.

The Commission further opines that the answer to your second question is Yes.

Because question three is not a question about mediator ethics, the Commission declines to answer it.

More Ethics Opinions
    
Read more about the Alabama Supreme Court Commission on Dispute Resolution.


 
Ethics Links
Alabama Supreme Court
Commission on Dispute Resolution
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Mediator Code of Ethics

Arbitrator Code of Ethics

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Private Judges

The Alabama Private Judge Act authorized the appointment of former or retired judges to serve as private judges in certain district and circuit court cases. - More -

Arbitrators

Arbitration agreements, are often found in pre-printed consumer contracts. They require parties to the contract to resolve disputes in binding arbitration, rather than in court before a judge and/or jury. - More -

Mediators

Mediation is a confidential, informal process during which an impartial third party, the mediator, assists disputing parties in reaching a mutually acceptable agreement regarding their dispute.

  • General Mediation offers a path to resolving many disputes. - More -
  • Family Mediation offers free divorce and family mediation for parenting, divorce and post-divorce issues. - More -
  • Forclosure Prevention and Mortgage Modification Mediation offers specially-trained mediators to assist Alabama citizens with foreclosure and mortgage problems by mediating between the homeowner and the mortgage holder. - More -

 


 


WHO WE ARE

Alabama CDR is the state office of dispute resolution. At the Center, we work with the courts, the Alabama State Bar, state agencies, schools, community mediation initiatives, and businesses to promote early and peaceful resolution of disputes. We are the administrative arm of the Alabama Supreme Court Commission on Dispute Resolution.

GET IN TOUCH

Alabama Center for Dispute Resolution
PO Box 5042, Montgomery, Alabama 36103-5042
Email:
Phone: (334) 269-0409

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