ATTORNEY-CLIENT MEDIATION PROGRAM
GUIDELINES FOR ATTORNEYS, CLIENTS AND MEDIATORS
1. INTRODUCTION TO PROGRAM It is the responsibility of the Appellate Divisions of the Supreme Court to ensure that attorneys are fit to practice law and adhere to proper ethical standards through the disciplinary programs administered by the Grievance Committee or the Office of Chief Counsel ("disciplinary office") in each judicial department. When clients assert that an attorney's conduct jeopardizes the public interest or severely prejudices a client's rights, such misconduct is subject to formal disciplinary procedures. These procedures can result in private sanctions, public censure, suspension or disbarment. When clients assert grievances that may not warrant formal disciplinary procedures, such grievances may be appropriate for referral by the disciplinary office to the Program for Mediation of Attorney-Client Disputes that has been established by the Appellate Divisions at 22 NYCRR Part 1220 (April 1998).
2. THE MEDIATION PROCESS Mediation is a proven means of dispute resolution which enables parties to meet together in an informal atmosphere with the assistance of a neutral mediator in order to find solutions that address their interests and needs. Mediation can provide attorneys, clients and the disciplinary office with an effective means of resolving minor disputes in a non-adversarial manner. Mediation provides an opportunity to address a client's underlying interests and needs, while minimizing costs for attorneys in defending minor complaints and encouraging a positive relationship between attorneys and their clients and the disciplinary office.
3. COMPLAINTS SUBJECT TO MEDIATION The disciplinary office will evaluate a client's complaint about an attorney's conduct to determine whether it is appropriate for mediation. Referral to mediation is entirely within the discretion of the disciplinary office and neither the complainant nor the attorney has any presumptive right to have a complaint referred to mediation. However, once the disciplinary office deems a complaint appropriate for mediation, and the parties agree to mediate, each party shall cooperate in the mediation process. The types of cases that will be referred to mediation generally are those in which there has been a breakdown in the attorney-client relationship and where the complaint could be resolved best through conciliation and not formal disciplinary proceedings.
4. COMPLAINTS EXCLUDED FROM MEDIATION(a)Misconduct in the Complaint. Since avoidance of ethical misconduct by attorneys is a matter of public interest to the State and the courts, a complaint will not be considered appropriate for referral to mediation when it asserts ethical misconduct that could be subject to private sanctions, public censure, suspension or disbarment, including, but not limited to:(2) allegations of criminal conduct;(3) a pattern of similar misconduct or behavior (existing over a reasonable period of time);(4) allegations of abuse of alcohol or drugs or of physical or mental impairment.(b)Misconduct Revealed During Mediation. When an attorney engages in material ethical misconduct at the mediation session or a party to the mediation reveals that the attorney has engaged in material ethical misconduct that was not previously known by the disciplinary office, whether that conduct is related to or unrelated to the complaint being mediated, the mediator shall terminate the mediation process and report the misconduct to the disciplinary office in the mediation summary report. Such report shall be accompanied by the complaint and response originally submitted to the mediator. A copy of the mediation summary report will also be provided to the mediation coordinator for inclusion in the mediation file. The mediation report constitutes an exception to the confidentiality of all phases of the mediation process.5. MEDIATOR PANELS (a)Mediators. Mediators shall consist of attorneys appointed by the court or by the bar associations who have agreed to serve as volunteer mediators and who meet the experience and training requirements deemed appropriate by the Court.(b)Mediation Coordinators. Bar associations may appoint one of their members to serve as a mediation coordinator ("coordinator") to assist the disciplinary office in administering the program, including maintaining files, scheduling mediation, assessing conflicts of interest between a potential mediator and the parties to the mediation before appointing the mediators, and appointing mediators on a rotating basis from the lists of available mediators. In counties within a judicial department where there are fewer than 200 registered attorneys, local bar associations may designate a regional coordinator to represent the interests of the respective bar associations in administering the program.(c)Mediator Training. Mediator Training Programs may include the following: (1) conflict resolution, negotiation, and mediation theory;(2) standard mediation process and techniques, including mediation skills that relate to active listening, eliciting interests that may not seem legally relevant, probing, reframing of concerns, and introducing ordinary standards of professional practice to those unfamiliar with them;(3) standards for conduct of mediators concerning impartiality, ethics and confidentiality;(4) statutes, rules and practices governing mediated settlement conferences; and(5) identification of cases that are not appropriate for mediation.(d)Mediator Immunity. The mediator will not be liable for any act or omission while serving as an approved volunteer mediator except for wilful misconduct. Attorneys serving as volunteer mediators in this program are entitled to the protections afforded to State-sponsored volunteers within the meaning of subdivision (l) of section 17 of the Public Officers Law.(e)Conflicts of Interest and Impartiality. Upon receipt of the file, mediators, prior to the start of mediation or as part of the assignment process by the coordinator, shall determine whether there exists any conflict of interest between the mediator and the parties to the mediation. Conflicts include, but are not limited to, a personal or business relationship by the mediator with one of the parties during the last five years; an adversarial relationship between the mediator or an attorney in his or her firm and either party within the last five years; or legal representation of one of the parties by the mediator or by an attorney in his or her firm that concluded within the last five years. Where such a conflict of interest exists and is not waived by the parties, the matter shall be assigned to another mediator. In addition, if at the start of the mediation process either party objects for cause to the assigned mediator, or the mediator does not believe that he or she can serve as an impartial mediator, a new mediator should be appointed. The mediator will conduct the conference informally. At the outset of the process, the mediator should describe the rules by which the mediation will proceed and make clear to the parties that he or she is serving as a mediator and not a judge.
The mediator's role is to facilitate communication and suggest ways of resolving the dispute, and not to impose a settlement on the parties. The mediator shall make every effort to hear all the relevant facts, review all the relevant documents, become familiar with any controlling legal principles and seek to bring about an acceptable compromise between the parties. The mediator should refrain from using legal jargon and assure that any proposal discussed as a means of resolving the matter is clearly understood by the parties.
6. MEDIATION PROCESS The disciplinary office, upon determining that a complaint is appropriate for mediation, will send copies of the complaint and any other correspondence related to the complaint, to the appropriate mediator or coordinator, and notify the attorney and the complainant of the referral. The mediator or coordinator then will notify the attorney by first class mail to submit within 20 days a response to the complaint, if a response was not previously submitted. If no response is received within 20 days, the complaint will be returned to the disciplinary office for investigation.
Upon receipt of the attorney's response, the matter will be assigned to or retained by an impartial mediator. The mediator will schedule a mediation conference within 14-21 days after assignment of the matter, or if the matter has been directly handled by the mediator, within 14-21 days after receipt of the response. Any additional correspondence from the attorney or the complainant concerning the dispute must be submitted to the mediator no later than 10 days prior to the mediation conference. The mediator may grant an adjournment of the conference for good cause, but in no event may the conference be held more than 45 days after the response has been received or after referral to the coordinator, whichever is later.
Within 10 days following the conclusion of the mediation, the mediator shall send a mediation summary report to the disciplinary office.
7. LIMITED CONFIDENTIALITY FOR ATTORNEY-CLIENT MEDIATION PROCESSES The significant public interest involved in regulating an attorney's fitness to practice law requires that mediation shall be confidential except as stated below and except as required by section 90(10) of the Judiciary Law. Mediators shall inform the parties to the mediation about these exceptions in the mediator's opening statement in the mediation session.
(a)Mediators Shall Report Misconduct. Mediators shall report to the disciplinary office whenever an attorney engages in material ethical misconduct during a mediation session or when a party to the mediation reveals that the attorney engaged in material ethical misconduct that was not previously known by the disciplinary office, whether such conduct is related to or unrelated to the complaint being mediated. Mediators shall terminate the mediation process and report the misconduct to the disciplinary office in the mediation summary report. Such report shall be accompanied by the complaint and response originally submitted to the mediator. A copy of the report shall be provided to the coordinator for inclusion in the mediation file. The conduct reported by the mediator under this section along with the allegations of the original complaint are subject to investigation by the disciplinary office.(b)Mediated Agreements Shall be Forwarded to Disciplinary Offices. Upon the termination of mediation, the mediator shall include a duplicate original of any full or partial signed agreement reached by the parties at the mediation session with the mediation summary report that must be filed with the coordinator or the disciplinary office. Coordinators will forward the agreement and report to the disciplinary office.(c)Report Shall be Filed upon Unsuccessful Mediation. The coordinator or mediator shall report a termination of the mediation process to the disciplinary office on a mediation summary report when a complainant fails to respond to a notice or to appear, when the complainant withdraws the complaint, or when the mediator terminates the mediation on his or her own accord if agreement cannot be reached.(d)Correspondence Shall be Labeled "Confidential."All correspondence by disciplinary offices, coordinators or mediators to the parties shall bear the legend, "PERSONAL AND CONFIDENTIAL."(e)Files Shall be Confidential with Exceptions. Except as provided in (f) below, documents submitted to the mediator shall be used only for the mediation process and shall be returned to the party who provided them at the close of the mediation process, including brief statements that the mediator requests from the parties before the start of mediation process after the response to the complaint is filed. The complaint and response to the complaint along with any mediated agreement will remain part of the mediation file. The files created for the mediation program, including administrative documents created by the coordinator, shall be marked as "CONFIDENTIAL" and all reasonable steps shall be taken by the disciplinary office, coordinator and staff, and mediators to assure such confidentiality, except as specifically provided in these rules. Absent an order from the Appellate Divisions to the contrary pursuant to section 90(10) of the Judiciary Law, the only persons who shall have access to the confidential files are coordinators and their administrative staffs, members of the disciplinary offices, appropriate Appellate Division staff, and the complainant and attorney, or their respective legal representatives. Mediators shall only have access to the files for cases on which they serve as mediators.(f)Mediation Sessions Shall be Confidential with Exceptions.Mediation sessions shall be held in circumstances assuring confidentiality of the process. Mediators should assure the availability of confidential individual caucus sessions with each party to encourage parties to discuss their genuine interests and needs that may assist the mediator in helping the parties reach acceptable mutual resolutions. Mediators have an obligation to report to the disciplinary offices any evidence not previously known by the disciplinary office that raises a substantial question as to the attorney's honesty, trustworthiness or fitness as a lawyer in other respects. Mediators shall not reveal information to another party to the mediation when it is identified as confidential by the revealing party. Mediators and parties agree they shall not reveal any statements, conduct or documents used during mediation to third parties, except as specifically required by these rules.8. OUTCOME OF THE MEDIATION PROCESS (a)Failure to Cooperate. If an attorney fails to respond to a complaint or to appear at a mediation session, the mediator shall terminate the mediation and file a mediation summary report. If a complainant fails to cooperate in the mediation process, the mediator shall terminate the mediation process and file with the disciplinary office a recommendation that the complaint be dismissed.(b)Dismissal of complaint upon an attorney's compliance with Mediated Agreement. When a mediation results in a mediated agreement, an attorney's compliance with the terms of a mediated agreement in a timely and good faith manner will result in dismissal of the complaint by the disciplinary office. Mediated agreements should set forth a reasonable time frame for compliance whenever feasible.(c)Failure to Comply with a Mediated Agreement. Before the close of the mediation session, the mediator will inform the client that an attorney's failure to comply with the mediated agreement in the time period specified in the agreement will result in the matter being referred to the disciplinary office. If an attorney fails to comply with the terms of a mediated agreement on file with the disciplinary office, the disciplinary office may initiate a disciplinary investigation on the original charges and on "conduct prejudicial to the administration of justice" arising from non-compliance with the mediated agreement. If such investigation is commenced, the mediated agreement, complaint and response to the complaint can be used by the disciplinary office in its investigation.(d)Failure to Reach Agreement. When parties do not reach agreement in the mediation, the mediator shall report termination of the process without agreement on the mediation summary report sent to the disciplinary office which may continue its investigation of the original complaint.N.Y. Comp. Codes R. & Regs. Tit. 22 § 1220.7