CLE Seminar Agenda: ETHICAL DILEMMAS IN MEDIATION AND ARBITRATION

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GENERAL INFO:

Date & Time: Thursday, December 1, 2016, 1pm-3pm
Location: The Little London Plane, 322 Occidental Ave. S, Seattle, WA 98104
Credits: 2 CLE credits
Fee: $100.00 per person
Note: Seating is limited to 25 people. Please RSVP at casemanager@pacificadrconsulting.com

AGENDA: ETHICAL DILEMMAS IN MEDIATION AND ARBITRATION

Presented by: Pacific ADR Consulting-Copyright 2016
Speakers: Catherine Yalung, J.D.
Gregg Bertram, J.D., LL.M.

Introduction of Speakers

ETHICAL ISSUES IN MEDIATION

a.  Confidentiality Per Uniform Mediation Act (UMA), RCW 7.07.030-7.07.070.
1.  Mediation Confidentiality is a Privilege That Can Be Waived
2.  Duties of Attorneys to Preserve Confidentiality
3.  Duties of Mediators to Preserve Confidentiality
4.  Exceptions to Confidentiality Privilege Per RCW 7.07.050.
5.  Are Settlement Agreements Confidential Per the UMA?
6.  When Can Mediators Be Compelled or Prevented to Testify?

b.  Ethical Obligations of Attorneys in Mediation
1.  Competence
2.  Authority to Settle- Multiple Representation
3.  Disclosure of Client Confidences
4.  Truthfulness
5.  What is “Good Faith Negotiation?”

c.  Mediators’ Ethical Obligations
1.  What is the Applicable Ethical Standard for Mediators?
2.  UMA Applies to Attorney and Non Attorney Mediators-RCW 7.07.080 1(b)6.
3.  What Disclosures of Conflict of Interest Must Be Made by Mediators Per RCW 7.07.080?
4.  Scope of Mediator’s Duty Re Confidentiality Per RCW 7.07.060.
5.  Can a Mediator Ever Be Compelled to Testify Re a Mediation Communication?
6.  When is a Mediator Permitted to Disclose a Mediation Communication? -RCW 7.07.050, 060.
7.  Is a Mediator Ethically Required to Be Competent and Prepared for Mediation?
8.  Can the Mediator Ethically Draft Settlement Agreements?

ETHICAL ISSUES IN ARBITRATION

a.  In Washington, Arbitrator’s Duty to Disclose Conflicts of Interest is Governed by the Uniform Arbitration Act(UAA), RCW      7.04A.120.
b.  What Must the Arbitrator Disclose?
c.  When Must an Objection to Arbitrator Disclosure Be Made? See RCW 7.04A.110 (1)(b)(3), (4).
d.  Ethically, Must an Arbitrator Be Competent to Adjudicate the Subject Matter of the Arbitration?
e.  Scope of Arbitrator Immunity Per RCW 7.04A.140.
f.  Compare California Arbitrator Disclosure Requirements and Limited Arbitrator Immunity.
g.  Grounds for Vacatur Per UAA and Federal Arbitration Act (FAA), 9 USC Sec. 1, et. seq.

OTHER ETHICAL ISSUES

a.  In Mediation/Arbitration ADR Clause, Should the Same Person Serve as Mediator and Arbitrator? Why? Why Not?
b.  Often in CR2A Settlement Agreements, the Mediator is Selected as Arbitrator for Disputes Arising Out of the Settlement Agreement. Should Mediators Accept Such Assignments and, If They Do, are Additional Disclosure Obligations Triggered?
c.  During an Arbitration, Should the Arbitrator Consider Serving as a Neutral in Another Matter Involving a Party to the Arbitration or an Attorney of a Party?

Sample of Litigated Cases Arising Out of Alleged Violations of Mediator or Arbitrator Ethical Standards
a. Capobianco, et. al. v. Vulcan, Inc., Washington Court of Appeals, Div. I, No. 65365-2-1 (2011).
b. JAMS v. Superior Court of San Diego County.
c. Bosack v. Soward, 586 F.3d 1096 (9th Cir. 2009), cert. den. 130 S. Ct. 1522 (2010).

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