Alabama Supreme Court Commission on Dispute Resolution

About the Commission

Recognizing the need for an authoritative and permanent body to oversee the development of ADR in our state, the Alabama State Bar, and the State Court Circuit and District Judges Associations petitioned the Alabama Supreme Court to develop such an entity. As a result, the Alabama Supreme Court created, by order effective July 1,1994, the Supreme Court Commission on Dispute Resolution.

 Order Establishing the Alabama Supreme Court Commission on Dispute Resolution

The commission is charged by the Supreme Court with numerous responsibilities a few of which are:

• Instituting necessary guidelines for the orderly progress of alternative dispute resolution programs and procedures in the state court system.
• Providing technical assistance, education and training to the bar, the judiciary and the public.
• Developing training procedures, qualification criteria, standards of conduct and utilization standards for mediators and other alternative dispute resolution neutrals.

The commission oversees the operations of the Center of Dispute Resolution and serves as a focal point for the supervision, coordination and implementation of the broad development of ADR in Alabama, both in the state court system and the public at large. Within the latter context, the commission assists in the development of, for example, neighborhood dispute resolution projects and school conflict management programs. The commission also works closely with Administrative Office of Courts and the state bar committee on ADR in many areas involving ADR studies.

Our commission has a firm commitment to developing in Alabama
a full-scale alternative dispute resolution program, and
one which eventually will become a model for other states.

 

Members

Mediator Ethical Opinions

• Opinion 001-21 (below)
• Opinion 001-13 (below)
• Opinion 001-10 (below)
• Opinion 001-05 (below)

  

More on Ethics in
Alternative Dispute Resolution

 

OPINION 001-2021
Opinion of the Alabama Supreme Court Commission on Dispute Resolution

The Commission considered your request for an opinion on September 3, 2021.

Request:  A group of registered mediators is contemplating forming a mediation center and pose this question:  Is it proper for our mediation center (made up of registered mediators) to offer a rewards program for lawyers who use their services?  Lawyers would earn points for using our center to mediate and for referring other lawyers to use our center.  Points would be redeemable for gift cards and the more points the higher the value of the gift cards.  Points, if saved, could eventually be redeemed for a 3 day stay at a hotel, for example.”

Response:  No.  A mediation center that offers money, gift cards, financial incentives or other like rewards to a lawyer and/or lawyers using the mediation center harms the profession by giving the appearance of bias, prejudice and partiality towards the lawyer/law firm using the mediation center’s services.  It could give the appearance of preferential treatment. Here, the lawyer is receiving a benefit in exchange for paying the mediator (e.g., earning points which may be redeemed for gift cards, etc.).  A party upon learning that the lawyer and/or law firm is receiving something for hiring the mediator might expect that they will receive favorable treatment. It impairs the mediator’s ability to be impartial and unbiased.

 

Rationale:

Code of Ethics for Mediators:

Standard 5. Impartiality and Conflicts of Interest

(a)  A mediator shall be impartial and shall advise all parties of any circumstances that may result in possible bias, prejudice, or impartiality on the part of the mediator.  Impartiality means freedom from favoritism or bias in work, action and appearance.

(b)  Required disclosures.

(1) A mediator must disclose to the disputing parties the following:

(B)  Any pecuniary interest the mediator may have in common with any of the parties or that may be affected by the outcome of the mediation process.

(D)  Any close personal relationship or other circumstances in addition to those specifically mentioned in this Standard, that might reasonably raise a question as to the mediator’s impartiality.

(3)  Prior service as a mediator in a mediation involving a party or an attorney for a party does not constitute representation of the party or consultation work for the party. However, mediators are strongly encouraged to disclose such prior relationships.  Mediator must disclose any ongoing relationship with a party or an attorney for a party involved in a mediation, including membership on a panel of persons providing mediation, arbitration, or other alternative dispute resolution services to that party or attorney.

Standard 8.  Fees and Expenses

(c)  Referrals.  No commissions, rebates, or similar remuneration shall be given to or received by a mediator for referral of persons for mediation or related services.
 
The key words here “given to or received by a mediator.”  This standard does not say “given by a mediator.”

Standard 1. General

Under Standard 1 the offering of rewards and/or incentives to those who use the mediator’s services jeopardizes the mediator’s integrity and impartiality.

Standard 1 (a) Integrity, Impartiality and Professional Competence

(1) A mediator shall not accept any engagement, perform any service or undertake any act that would compromise the mediator’s integrity.

The standard says “would” not could or did.  As noted in Standard 8, “a mediator occupies a position of trust with respect to the parties and the court system.”

Emphasis added.

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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:

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.

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OPINION 001-2010
Opinion of the Alabama Supreme Court Commission on Dispute Resolution

The Alabama Supreme Court Commission for Dispute Resolution responds to your request for an opinion whether certain mediator conduct is allowed or prohibited by the Alabama Code of Ethics for Mediators (as amended, 1997) (hereinafter, Code).

The Commission understands that the Circuit Court for the Tenth Judicial Circuit adopted the Birmingham Differential Case Management Plan, Civil (Revised, Sept. 2008) (hereinafter, Plan), and cases may be referred to mediation in accordance with he Plan. The court issues a mediation order that refers a case to mediation, and the order directs who must appear at mediation and with settlement authority. You are the Court mediator, and the court appointed you as mediator in the case and set your hourly fee. The parties did not object to the amount of the hourly fee. You convened mediation but withdrew, and a new mediator resumed the mediation. The second mediator terminated the mediation without a settlement. After the mediation was terminated, the parties negotiated, and you were told the case may resolve if the mediators agreed to reduce their fees and sign the settlement agreement. Specifically, one of the lawyers for a party requested that you and a second mediator reduce your fee as consideration for a release of (1) potential claims against you for claimed mediator negligence during the mediation, and (2) claimed unethical conduct during the mediation. You refused the offer.

In addition, you believe one of the parties violated the court's mediation order because not all parties on one side attended the mediation, and the party that did attend did not have any settlement authority. Finally, you state that because the parties agreed to caucus mediation, only the mediator may have been aware of these facts.

The case settled without the mediators reducing their fees and they did not sign the settlement agreement. The court ordered the case dismissed with prejudice. The mediators' fees are not paid.

Your questions are: (1) what is the ethical response of a mediator when the mediator is told that a settlement is preconditioned on the mediator reducing her fees and she must sign the settlement agreement that contains a release; (2) what is the ethical response of the mediator when one of the parties threatens to file a civil action or Bar complaint or a complaint with the Commission if the mediator does not reduce her fee; (3) does the Code allow a mediator, who is mediating a case under the Plan, to report to the court that not all parties
attended a mediation; (4) does the Code allow a mediator, who is mediating under the Plan, to report to the court that the party that attended mediation did not have any settlement authority; and (5) can the mediator report to the court that her mediator's fee is not paid.

Because the case is dismissed with prejudice, the Commission fmds questions 1 and 2 moot.

The Plan, and the court's order as you have described it, must be considered against the background of Code Standards 2 & 6(a); the Alabama Civil Court Mediation Rules 1(b) and 11 (Rule); and Ala. Code § 6-6-20 (c) (1975) (2005 Repl. Vol.). Standard 2 states, among other things: "A mediator shall observe all administrative policies, procedural rules, and statutes that apply to mediation." Standard 6(a) states: "A mediator shall preserve and maintain the confidentiality of all mediation proceedings except where required by statute or
agreement to disclose information gathered during the mediation." (emphasis supplied). The Mediation Rules apply to court ordered mediation, and Rule 11 governs confidentiality of information "disclosed in the course of mediation". Section 6-6-20 (c) is part of the Alabama Mandatory Mediation Act, and it and A. R. Civ. P. 37 allow a court to impose sanctions on a party that fails to mediate as required by the Act.

Confidentiality is the backbone of mediation. Rule 11, comment. The rule is designed to protect the confidentiality of information disclosed to the mediator during the mediation, and includes information in position statements, oral communications, and documents. However, this rule is subject to the exceptions stated in Standard 2 and Rule 11(b). Even in a hearing to impose sanctions, the mediator cannot be
compelled to disclose statements made and actions taken during mediation. Rule 11 (d).

The Code Standards, the Rule, and the Act address information. They do not address conduct. The California Court of Appeals recently considered a situation when an excess insurance carrier did not appear at appellate mediation as required by the appellate mediation rule. Campagnone v. Enjoyable Pools & Spa Servo & Repairs, Inc., 77 Cal. Rptr.3d 551, 163 CaL AppAth 566 (CaL Ct. App. 2008). The court
stated: "The failure to have all persons or representatives attend .. "' is conduct that a party, but not a mediator, may report to court as a basis for monetary sanctions." Campagnone at 572. The court further held that reporting anything more may violate confidentiality rules.

Based on Campagnone and § 6-6-20(c), a party, but not the mediator, can report that a person or representative required to attend mediation did not attend. It appears that the only reason for the compliant party to report this conduct is to obtain monetary sanctions, and this is not part of the mediation proceeding or process (Rule 1(a), § 6-6-20(a), Standard 3). It is neither the duty nor responsibility of the mediator to act on behalf of any party in this regard. If, for whatever reason, the opposing party is unaware that a required party does not attend, the Commission's opinion is the mediator can withdraw or terminate the mediation. Standard 3(b).

The Commission believes the same reasoning applies when a party appears at mediation without settlement authority. First, under the Plan the party is not deemed to have appeared if he or she does not have any settlement authority. Second, assuming this is conduct and not information gathered during the mediation, it is conduct for which the compliant party can seek sanctions, if desired. The remedy of sanctions is the party's, not the mediator's. The mediator's option is to withdraw or terminate.

The Commission's opinion is a mediator mediating under the Plan cannot report to a court whether or not a party attended mediation, and cannot report to a court whether or not a party had settlement authority; therefore, the answers to questions 3 and 4 are no.

The mediation is terminated and the case dismissed, but the mediators' fees are not paid. This is a situation that is not part of the mediation proceeding, or information disclosed in the course of mediation, or information gathered during mediation. The Commission's opinion is the Code does not prohibit the mediator from reporting to the court that the fees are not paid. The answer to question 5 is yes.

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OPINION 001-05
Alabama Supreme Court Commission on Dispute Resolution's First Mediator Ethics Opinion

[This is the first ethics opinion requested of the Alabama Supreme Court Commission on Dispute Resolution. The Alabama Code of Ethics for Mediators was adopted by Order of the Supreme Court of Alabama, December 14, 1995 , and effective as of March 1, 1996 . Any mediator may write the Commission for an opinion about a section of the Code or for an opinion regarding some action based on the Code.]    

Questions Presented:

• May a retired circuit court judge, upon retirement, accept mediation appointments from circuit judges when the case being referred may at one time have been assigned to the retired circuit judge?
   
• Does the extent of involvement in the case make a difference? For example, if the judge merely had signed a HIPAA motion requesting documents, or accepted a mutually agreed upon scheduling order, would such acts preclude the retired circuit judge from accepting the appointment as a mediator?
   
• Should the retired judge accept cases for mediation if the retired judge previously had made a ruling in the case that was dispositive of some issue and in favor of one party over the other party?

Response:

• A retired Judge may accept referrals for mediation made by another judge who had been a judicial colleague of the retired judge. If the retired judge previously had some involvement in the case, he or she must fully disclose the extent of that involvement to all parties to the mediation and allow the parties to request another mediator if either party feels any concern over the inability of the retired judge to be fully impartial.
   
• The greater the retired judge's involvement in the case, the greater his or her Responsibility to evaluate whether he or she can remain impartial and Whether the appearance of lack of impartiality may cause any party to be uncomfortable with the judge as a mediator. The concern about lack of impartiality might not occur until after the parties have engaged in some mediation sessions, and the mediator's actions or words have been evaluated by the parties as being impartial or not, thus the mediator should err on the side of refusing an appointment if there is any doubt in his or her mind about how the question of impartiality may be perceived by the parties. (See Standard Five, Alabama Code of Ethics for Mediators). Specifically to this opinion, the mere act of ruling on a motion, such as discovery request or HIPPA request, in most cases should not automatically preclude a retired judge from accepting an appointment as a mediator in the same case. If in ruling on the motion the judge has received information ex parte, or otherwise, which is not known to the other party, the retired judge should decline appointment as a mediator.
   
• In all cases where the retired judge has made rulings dispositive of some issue in the dispute, the retired judge should decline to serve as mediator. Ruling on a dispositive issue suggests that the retired judge already has determined that one party is right and the other party is wrong on an issue in dispute. The likelihood that the losing party could accept the retired judge's impartiality in mediating on other issues seems so great that the Commission finds that the retired judge should decline appointment as mediator to avoid the appearance of impropriety.

In considering whether to accept appointment as a mediator in a case that previously was assigned to the retired judge, however slight the judge's involvement, the retired judge should keep in mind that parties may be more intimidated in expressing their feelings about impartiality due to the friendship relationship between the retired judge and the appointing judge. It is therefore important that the retired judge be conscious of this potential concern and develop a non-threatening way for the parties to express their view that another person be appointed as mediator. If the parties, or either of them, express a concern about the retired judge's impartiality, it is the duty of the retired judge to withdraw from service as mediator and inform the court only that he or she is unable to serve because of a conflict of interest. The details of the conflict of interest should not be shared with the appointing judge. The freedom of choice in having a mediator with whom all parties are comfortable should be the overriding consideration.

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