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Ethical Considerations in Dispute Resolution Practice
Thursday, October 29, 2015
Kimberlee KovachKovach Dispute Resolution
www.kimkovach.com
[email protected]@yahoo.com
Overview & Agenda• Focus on the Lawyer Representative rather
than the Neutral• Numerous different Codes or Standards for
Neutrals, though issues regarding enforcement
• Examination of potential Ethical Issues of the Lawyer (and the Client) in Mediation / Negotiation
• Concerns and Issues in Arbitration Practice • Process Understanding • Disclosure Matters• Partiality and Appearance of Bias
Overview & Agenda, cont’d.
• Standards in Transactional Negotiation • Negotiating a Dispute Resolution Clause
• Contracting for Ethics / Standards of Conduct
• Potential of Issues Arising in Multi-Jurisdictional Practice • Mediation• Arbitration
• Dialogue and Idea Exchange• State Bar ADR Section Efforts• Global Pound Conference
Background of Legal Ethics
• Role of the ABA• Then• Now
• Need for Additional Considerations • State Bar of Texas • Other Options, since little real
guidance
Concerns: The Playing Field Changed
• Understanding the Evolution of Law Practice • Different Approaches, even in Litigation • No Longer, One Size, Color, Shape Fits All
Situations • Need to Examine the Changes in the Lawyer’s
Role in Negotiation, Mediation and Settlement • Understanding that Effectiveness in the
Courtroom Differs Considerably from Effectiveness in Mediation and / or at the Negotiation Table
Issues in Lawyer Representation in Dispute
Resolution Processes• Practice of Law ?
• Rules and Guidelines
• Inconsistency of Process and Rules – Folly• Focus on Mediation and Collaborative
Negotiation
Lawyer Representation: Sample Considerations in Mediation and Negotiation
• Realization / Understanding of Real Paradigm Change
• Overlapping Use of Tactics & Strategies • Inappropriate at Best, perhaps Malpractice
at worst• Real Need for Change in Rules• Knowledge / Understanding of
Negotiation • Role of Mediator – Educator ? Enforcer ?
Other ? • Practical Considerations
The Rules…. • Rule 2.1 Advisor
• Comments
• Rule 3.2 Expediting Litigation
• Rule 4.1 Truthfulness In Statements To Others
• Rule 8.4 Misconduct
Practical Considerations
• Dispute Context• Enforceability of Mediated
Settlements…
• Transactional Negotiations
Legal Representation: Sample Considerations In Arbitration
• Understanding the Process • Importance of Disclosures- ongoing• Real Consequences• Repeat Players• Questionable Authority of Panel / Arbitrator • Roles Distinct – what happens when advocate
a neutral• Problematic Blending of Processes
• Clarity in the DR Clause
Multi-Jurisdictional and International Considerations
• Practice of Law Issues ?• Differing Court Holdings • What Ethical Standards Apply ?
• How Culture Impacts Ethics / Morals • Any Changes Possible / Probable ?
+Going Forward…
Establishing Effective Dispute Resolution Procedures
Contractual Ethics to Govern Procedures
Education and Enforcement Other Considerations…
+Going Forward: Looking at Alternatives…
Role of Courts
Foundation of Best Practices
Role of State Bar AssociationsCurrent Efforts in Texas
Scope of Applicability of Enforcement EntitiesPrivate Justice ?
Contractual Ethics
+Contractual Ethics
OptionsConcerns
Ability to Craft or Design Means to Enforce
Other Considerations
+The Global Pound ConferenceBackground and Overview http://www.globalpoundconference.org/ Importance of equal participation of four
stakeholder groups Providers Advisors Users Miscellaneous
Texas (and central US) Event – first quarter of 2017
+Additional Dialogue / Feedback / Questions & Comments