ADR Related Legislation
The 2002 General Assembly is considering a few bills related to the field of dispute resolution. House Bill No. 818 is summarized below. Individuals may track the status of any bill by logging on to the legislative information system at http://leg1.state.va.us.
House Bill No. 818 - This bill modifies the mediation statute and dispute resolution proceedings statute.
- A new sentence describing the scope of the dispute resolution proceedings statute as limited to court-referred dispute resolution is added. All sections indicate that the original intent was to cover court-connected proceedings. The purpose is to distinguish this from the general mediation statute.
- The word evaluation is changed to orientation throughout. Evaluation is a loaded word associated with style of mediation. Orientation better describes the introductory meeting.
- The definition of mediation is changed to combine the definitions currently found in both the mediation statutes.
- The purpose of the orientation session is spelled out more clearly.
- Minor revisions included to simplify the section on costs.
- The first paragraph rearranges the order of the sentences to be clearer.
- The Court's role in setting a reasonable fee for services where one party is indigent or where there is no agreement as to payment is described here.
- Language is added to clarify what the mediator can report back to the court. The mediator can state whether an agreement was reached, the terms of the agreement if authorized by the parties (some parties want the agreement to be confidential), and the fact that the orientation session or mediation did not occur. Currently, if there is a no-show, the mediator can only state that there was no agreement. This is inaccurate. This revision is not intended to place blame on any party, but to clarify that the orientation session or mediation did not occur, not that an agreement was not reached.
- The proposed revision limits immunity to certified mediators and a mediator co-mediating with a certified mediator. The original language protects all mediators from liability, regardless of certification. Thus, it protects mediators who may have not had any training and clearly do not have any oversight or accountability to standards of ethics. The revisions make it clear that any other immunity, such as sovereign immunity, that may exist for a mediator shall continue, regardless of certification.
- This revision should not preclude community mediation center mediators or volunteers from mediating as it covers mediators co-mediating with a certified mediator.
- This revision is not intended to disrupt mediation programs, such as the workplace mediation program conducted by the Department of Employment Dispute Resolution where mediators may be covered by sovereign immunity.
- This section is revised to ensure the confidentiality of screening, intake and scheduling communications. Recently, many mediators or mediation program staff are being subpoenaed to testify as to the scheduling conversations. This is compromising the role of the mediator as a neutral. In addition, mediation is a voluntary process and a party should not be penalized for not participating.
- Clarification that parties must sign the settlement agreement before it becomes a non-confidential document.
- New exceptions to confidentiality: where a threat to inflict bodily injury is made, where communications are used to plan, attempt to commit, or commit a crime or conceal a crime, where an ethics complaint is made against a mediator, where communications are sought to prove or disprove a claim of malpractice by a party's lawyer, and where communications are sought to prove or disprove any of the grounds listed in 8.01-576.12 in a proceeding to vacate a mediated agreement. Some of these revisions are drawn from language in the Uniform Mediation Act.
- Clarification that full disclosure of property or financial matters should be made in domestic relations cases involving divorce, property, support or the welfare of the child.
- Revisions to the general mediation statute are intended to mirror the language in the court-referred mediation statute and include modifications described above to make both statutes consistent.
On February 4th, the American Bar Association's House of Delegates approved the Uniform Mediation Act (UMA), leading the way for more aggressive efforts to win passage for the Act in state legislatures across the country.
The Uniform Mediation Act would create a privilege for mediators and mediation participants to refuse to disclose and prevent others from disclosing mediation communications in future proceedings. However, that privilege would be removed when a mediator fails to disclose conflicts of interest. This provision led to the passage of formal resolutions of opposition by the Pennsylvania and Texas Bar Associations as well as the International Academy of Mediators and the ADR Section of the Maryland Bar Association.
The UMA in recent weeks has been introduced in the South Carolina, Vermont, Oklahoma, and Nebraska legislatures. The National Conference of Commissioners on Uniform State Laws (NCCUSL), which led to the drafting of the Act and approved it last fall, normally waits for ABA approval prior to presenting an act to state lawmakers. NCCUSL will step up introduction of the Act in legislatures that are currently in session.
The American Bar Association Section of Dispute Resolution's policy council on February 2nd adopted a resolution stating that mediation is not the practice of law and a mediator's discussion with parties regarding legal issues does not establish an attorney-client relationship, whether or not the mediator is an attorney.
The resolution further states that, when an agreement is reached in mediation, the preparation of the voluntary agreement incorporating the terms of the agreement does not constitute the practice of law. If the mediator drafts an agreement which goes beyond the terms specified by the parties, the mediator may be engaged in the practice of law. However, in such a case, the mediator shall not be engaged in the practice of law if (a) all parties are represented by counsel and (b) the mediator discloses that any proposal the mediator makes with respect to the terms of settlement is informational and that the parties should consider such proposals in consultation with their own attorneys. The resolution states that the mediator's role is not to provide the parties with legal representation but to assist them in reaching a voluntary agreement. The resolution states further that the mediator's responsibility is to inform the disputants that a settlement agreement may affect the parties' legal rights and that they have the right to seek the advice of independent legal counsel throughout the mediation process and should seek such counsel before signing a settlement agreement.
The comments note that there is growing consensus in ethical opinions that mediation is not the practice of law and a growing body of standards governing the practice of mediation. To address the question of whether the ABA Model Rules of Professional Conduct apply to lawyers when they are mediators, the ABA Ethics 2000 Commission has made a new rule regarding a lawyer serving as third-party neutral which clarifies that a lawyer may assist parties as a mediator and such services do not create an attorney-client relationship. Attorney-mediators should be aware that, unless they are admitted to the bar in every state, they, too, are potentially affected by the issue of UPL and mediation.
The Virginia Guidelines on Mediation and the Unauthorized Practice of Law articulate a standard for mediators that differs from the standard articulated in this Resolution. The Guidelines define legal advice as applying the law to the facts of the case in such a way as to (a) predict the outcome of the case or an issue in the case, or (b) recommend a course of action based on the mediator's analysis. The Virginia Guidelines with respect to agreement writing are similar to the ABA Resolution.
Resolutions is published quarterly by the
Department of Dispute Resolution Services
Office of the Executive Secretary
Supreme Court of Virginia.
To request copies of the newsletter or to be placed on the mailing list, you may contact:
Department of Dispute Resolution Services
100 North Ninth Street, Third Floor
Richmond, Virginia 23219
Telephone: (804) 786-6455
Editors: Geetha Ravindra
Contributions of articles or information are always welcome.
This page last modified: October 18, 2002