The development of ADR as the common—if not the dominant—method of civil dispute resolution in some areas of conflict is not without its own issues. Some lawyers and judges worry that moving disputes from the courtroom to the conference room may weaken our system of justice.
They point out that ADR removes the important democratic leavening of the jury, deprives the common law of the robust body of decisional law that it relies on to remain fresh and relevant, and favors private ends over public notions of fairness and justice. They worry that while a new generation of lawyers may become very adept at truncated and streamlined means and methods of resolving disputes, it may be at the expense of not learning basic courtroom techniques and the rules of procedure and evidence.
Should the interests of society in equal, fair, impartial and open courts give way to the concerns of litigants who wish to buy access to alternative, and secret, venues where their problems can be adjusted quietly? Will there be one system of justice for those who can afford the price of private judges and fora and another for those who cannot? All good questions.
Another concern, and one I wrestle with, is the role of lawyers’ ethics when nonjudicial dispute resolution becomes the norm. There are different rules for different fora, or as the old saying goes, “different horses for different courses.”
When we are engaged in litigation, lawyers have duties to the institution which are found in Rule 3’s mandates that we avoid frivolous litigation (Rule 3.1), move matters expeditiously (Rule 3.2), scrupulously honor our duty of candor to the tribunal (Rule 3.3), not engage in prohibited tactics (Rule 3.4) and honor the impartiality and decorum of the tribunal (Rule 3.5). By the way, in case you missed it, the 2007 changes to the Rules of Professional Conduct added arbitration to this class, defining “tribunal” in Rule 1.0(n) to include arbitral forums.
At the other end of the spectrum is mediation and bargaining. There Rule 4.1’s mandate of truth-telling and Rule 8.4(3)’s duty to avoid dishonesty, fraud, deceit and misrepresentation that apply. The lines dividing ethical and bad conduct at that end of the continuum are less bright. There has been plenty written about the mutual understandings that parties engaging in bargaining, position-stating, puffing, hyperbole and sharp negotiating mutually understand and accept. As one judge pointed out when dismissing a grievance involving some sharp conduct on the part of a personal injury lawyer, an attorney dealing with an insurance company is not expected to be “a paragon of virtue.” Really? Is that a good thing?
If you do a literature search, you’ll find lots written about the ethics of ADR, but it’s mostly dealing with conflicts, confidentiality, neutrality and proper and improper conduct on the part of arbitrators, mediators, facilitators and neutrals. There’s not as much written about what one author called the protocol of “consensual deception” which enervates some forms of ADR. Put simpler, it’s not a lie if everyone knows you’re lying when bargaining or negotiating.
I suppose that’s fine if everyone’s in on the game, singing from the same hymnal or using the same playbook. But what happens if the parties have an asymmetrical understanding of their mutual duties or where the lines are? Is it OK for one party to take advantage of another simply because one side thinks truth-telling is appropriate while the other hews to a more fluid relationship to reality?
I don’t want to get too political here, but our president has shown us what can happen when the ethos of the commercial real estate world, where extreme puffing and misrepresentation bordering on fraud is often the norm, is transplanted to the halls of Congress, where many expect public figures to be above casual lying. Now that they’ve had a year to learn to understand each other, embarrassments such as poor Sean Spicer’s crazy claims that black was white and up was down don’t seem to happen as much any more. Most people just understand that, at least in Washington, there’s facts and there’s “alternative facts.”
Back to ADR, I think that if alternative is indeed to become the dominant model of dispute resolution, we might all benefit from a discussion of what our shared rules and understandings are when we go behind closed doors. It is OK to lie to a mediator when in caucus, even if she understands (or you think she understands) that you’re not giving her your client’s real bottom line? Do we have a duty under Rule 8.3 to bring to the attention of the lawyer disciplinary authorities those of us who consistently push the boundaries? Is it acceptable to make reference to inadmissible matters or hide evidence in ADR when doing so in court would be a clear violation? If a mediator misunderstands the law to the benefit of our clients, do we have the same duty to politely correct them that we have when dealing with a court?
Maybe one answer would be to add ADR, in all its many iterations, to the definition of tribunal in the Rules of Professional Conduct. That way, notions of fairness, honesty and candor which have all come to be commonly understood to be the rules of the road in courts and court-annexed fora would apply in all forms of dispute settling.
Our common law and court systems developed over a period of centuries, while modern ADR came to be in a few short decades. Courts work because the public trusts them as places of fairness and justice. Without a shared body of common understandings, values and ethics, ADR might fade away as quickly as it appeared if a lack of clear ethical or moral underpinnings causes the public to lose faith in it as a viable alternative to judicial dispute resolution.
Former Connecticut Chief Disciplinary Counsel Mark Dubois is with Geraghty & Bonnano in New London.