Neutrals participate in court ADR programs in an amazing variety of ways, from working on a court staff or a court roster to hanging out a shingle or serving as a community volunteer. Neutrals lending their voices and experiences are also essential to developing and maintaining healthy court ADR programs.
- The Mediator's Handbook: Advanced Practice Guide for Civil Litigation – While no one can learn to mediate from a book, reading about it can help to strengthen one's ability to help settle cases.
Every neutral should follow a code of ethics and be aware of the issues surrounding ethical practices, including impartiality, conflicts of interest, confidentiality, and self-determination. Resources that are helpful for this include:
- Model Standards of Conduct for Mediators – The widely accepted standards developed by the American Bar Association, the Association for Conflict Resolution and the American Arbitration Association, revised in 2005
- Model Standards of Practice for Family and Divorce Mediation – Developed by the Association of Family and Conciliation Courts, these were followed by an array of family-ADR standards
- Guidelines for Parenting Coordination by the Association of Family and Conciliation Courts – Includes ethical and qualification standards as well as assistance to courts looking to implement a parenting coordination program
- The Code of Ethics for Arbitrators in Commercial Disputes – Standards established by the American Bar Association and the American Arbitration Association for all forms of commercial disputes
Complaints against neutrals and how those are handled
What happens if a party is dissatisfied with the neutral? Grievance processes have been set up in a number of states. Lawsuits have also been filed. Knowing the circumstances under which these have occurred and what neutrals' rights are in adverse circumstances is imperative. Resources in this area include:
- "Take It or Leave It. Lump It or Grieve It: Designing Mediator Complaint Systems that Protect Mediators, Unhappy Parties, Attorneys, Courts, the Process, and the Field" by Paula M. Young – Compares the grievance systems in place in eight states and discusses the necessary components to a well-designed system
- "Mediator Liability: A Snapshot" by Robert Badgley – Provides a somewhat chilling look at some of the many ways a mediator could get in trouble
- The Hamline University School of Law Mediation Case Law Database - Categorizes more than 2,000 court opinions on lawsuits arising from mediation, e.g., suit for enforcement of an alleged mediation agreement, mediation sanctions, duty to mediate, mediation confidentiality, mediation ethics or malpractice in the conduct of the mediation, mediation/arbitration issues, fees, or other issue. If the mediator liability snapshot didn’t send every mediator scurrying to be sure the malpractice insurance was paid up, this database will.
How programs are structured, especially regarding qualifications for neutrals
Even when neutrals are not involved with the formation and ongoing administration of court ADR programs, some information on how programs are structured is helpful. Get more information from the following resources:
- ADR Handbook for Judges by Donna Stienstra and Susan M. Yates – A cast of experts explains the ins and outs of every kind of court ADR program in this 500+ page ABA book. It is more than a “handbook,” and useful to anyone working on court ADR programs, not just judges.
Training and evaluating neutrals
The responsibility for preparing neutrals to conduct ADR processes, selecting them for rosters or cases, and ensuring that they continue to practice competently is shared by the neutrals and the courts. Sometimes other entities, such as bar associations or non-profit mediation providers, get involved with some or all of these activities. Find out more about how this could and does work from the following resources:
- "'Wheel of Fortune' or 'Singled Out?': How Rosters 'Matchmake' Mediators"
- Mediation Career Guide: A Strategic Approach to Building a Successful Practice by Forrest Mosten – This book describes how to launch a mediation career.