Thursday, July 3, 2014
Candor in Negotiation, Mediation, and Arbitration
Michael Dallaire's article begins: "Alternative Dispute Resolution (ADR) is here to stay. The Model Rules of Professional Conduct (Model Rules) must acknowledge that fact. Several scholars have posited the lofty goal of creating an entirely separate code of ethics for ADR or at least individual processes. But the process of ADR-specific rules must begin within the framework of the existing Model Rules. One of the first steps in that direction should be to clearly define the level of candor required of an attorney-advocate in each major ADR forum. An attorney’s duty to tell the truth, or his ability to deceive, should not be governed by a static standard when operating across a range of informal, nonbinding, participant-controlled settings like unassisted negotiation and mediation. The Model Rules of Professional Conduct should include separate and distinct duties of candor for each major ADR forum, formulating each based on the unique characteristics of an individual forum. The reformulated rules should focus on two primary factors in setting the requisite level of candor for a particular forum: (1) the stage in the dispute resolution process in which the particular forum is normally used, and (2) the degree to which a third-party neutral affects settlement."