Email Blast
GOOD NEWS FOR CDRC MEMBERS!
We are pleased to report that the State Bar Rules Revision Committee (formally, the Commission for the Revision of the Rules of Professional Conduct), at its meeting on January 26, has decided not to recommend the adoption of Proposed Rule of Conduct 2.4 at the present time.
Proposed Rule 2.4 was designed to create disciplinary rules specifically for lawyers serving as third party neutrals. Subsections (a) and (b) largely followed the ABA Model Rule and was basically non-controversial. But subsections (c) and (d) would have incorporated both the Rules of Conduct for Mediators in Court Connected Mediation Programs and the Ethical Standards for Neutral Arbitrators into the State Bar Rules of Conduct. This put these rules and standards to a use for which they were neither intended nor designed. Thus, for example, a lawyer mediator could be subject to a State Bar investigation if a disgruntled participant in the mediation complained that the mediator was not impartial and a lawyer arbitrator could be subject to such an investigation if a participant in the arbitration believed that the arbitrator did not make a proper disclosure. The proposed rule would have also created different disciplinary criteria for lawyer neutrals and non-lawyer neutrals as well as taken responsibility for creating future lawyer disciplinary rules in this area from the State Bar because the mediator rules and arbitrator standards were enacted by different organizations, which have the power to amend them.
The proposed rule was opposed by CDRC and other organizations. At the meeting on January 26, former CDRC board member Michael Carbone appeared on behalf of CDRC to voice our objections to the rule. As a consequence of our objections as well as objections by others, the committee decided not to recommend adoption of the rule at this time and will make an attempt to revise subsections (c) and (d), if possible.
There can be several possible outcomes to this process. Among others, they include: 1) no rule at all; 2) a rule containing subsections (a) and (b) only; 3) a rule containing subsections (a) and (b) accompanied by a reference to potentially applicable standards; or 4) a rule which might not be much different from the one that was considered by the committee on January 26.
We will continue to monitor this issue and we will keep you informed as well as provide the committee with necessary comments, if need be.
To get more information regarding RRC activities, go to:
http://calbar.ca.gov/state/calbar/calbar_generic.jsp?cid=10129
************************************************************
News Alert
President
Don Fobian
It's early in the year, but we are already busy working for our members. Here are a few of the projects that we have going, but we need your support! Please join, or renew your membership now, at www.cdrc.net.
_____________________________________________________
DRPA Bill Gets Sponsor
The Dispute Resolution Programs Act of 1986 was established to provide funding for Community Programs offering mediation. The money was collected as part of court filing fees and was capped at $8.00 per filing. CDRC lobbyist, Donne Brownsey, just announced that Senator Mark Ridley Thomas has agreed to author a bill that will allow an increase up to $12.00 per filing. Community programs have had a great impact on dispute resolution around the state and this increase will allow them to continue their good work. Board member Elizabeth Strickland drafted the bill and the CDRC will be working out the technical details with the Judicial Council due to the Uniform Civil Court Filing Fee system that was adopted by the state a couple of years ago. We look forward its passage becoming the first step in getting our community programs an increase in funding. As soon as we get the Senate Bill (SB) number, we will let you know so you can contact your local State Senator.
_____________________________________________________
CDRC in Action
Immediate Past-President John Blackman and Current President Don Fobian spent a day in
_____________________________________________________
Supreme Court Grants Review
The California Supreme Court has granted review of Simmons vs. Ghaderi, an important case involving mediation confidentiality. CDRC's Public Policy Committee is in the process of writing an amicus curiae brief supporting our position that the Appellate Court decision be overturned. Jim Madison, Chair of the Committee, will be lead author. The brief will focus on protecting mediation confidentiality.
_____________________________________________________
Committees Forming Now
Want to get more involved? Please visit our Website and contact a Committee Chair if you'd like to take a more active role in CDRC's activities. We can always use volunteers and expertise to assist our efforts to protect and enhance the practice of ADR in the State of
_____________________________________________________
State Bar Declines to Pass Rule 2.4
CDRC and other organizations joined together in protest of changes in the State Bar Rules Revision Commission's (RRC) proposal that would have given jurisdiction to the Bar to discipline mediators and arbitrators based upon violations of standards that were never meant to form the basis for discipline. Specifically: the draft rules transmuted aspirational standards in court-connected programs, and arbitrator ethics standards for contractual arbitration into disciplinary grounds. On January 26th, the RRC met via teleconference in
_____________________________________________________
Making Friends
Former CDRC President (and current Board Member) Mickey Katz and CDRC President Don Fobian met with Jan Frankel Schau, President of the Southern California Mediation Association (SCMA), to discuss how CDRC and SCMA can work together in the coming year. It is the beginning of a year of cooperation between organizations that are both dedicated to the continued success of ADR in
The newly revitalized Beverly Hills Bar Association ADR Committee is chaired by CDRC Board Member Gerry Phillips. Gerry and his co-chair, Gail Kaplan, hosted an evening of idea sharing, camaraderie, and friendship on January 23rd at the Beverly Hills Country Club. CDRC President Don Fobian was happy to attend and share some thoughts about CDRC for the crowd of over 70. Also attending the event were seven current and at least three former CDRC Board Members.
CDRC has been invited to speak about CDRC at the Orange County Bar Association ADR Committee's meeting on March 1st. Chair Ivan Stevenson has been a longtime supporter of CDRC. The topic at this event will be "CDRC - What Have you Done for Me Lately?"
CDRC endeavors to communicate with as many of you as possible. If your organization is planning an event, CDRC is pleased to provide a speaker.
_____________________________________________________
Annual Conference Date Set
Don't miss the most important and comprehensive ADR event in our state. CDRC's Annual Meeting and ADR Policy Conference will be on
Email Blast
CDRC 2007
President
Don Fobian
Dear CDRC Member:
As reported previously, the State Bar is proposing a new Rule of Professional Conduct for lawyers, Rule 2.4, which will establish guidelines for imposing State Bar discipline on lawyers who violate the Rules of Conduct for Mediators in Court-Connected Mediation Programs (CRC 3.850 et seq.) or the Ethics Standards for Neutral Arbitrators in Contractual Arbitration (Appendix, Cal. Rules of Court).
After receiving critical comment from CDRC and several other organizations and individuals, the State Bar commission that is reviewing and revising the Rules of Professional Conduct has made some changes to the proposed Rule 2.4.
You can review these revisions in their entirety by following the links below under “Revised Drafts For Review”. Versions A, B and C, and D2 (the latest version, published on March 7th) are published there in PDF form.
According to the drafters, Version D2 is the version they currently favor, and is the version they will be discussing at their upcoming meeting on
Please take this opportunity to stay informed and be heard. Your participation makes a difference!
Warmest regards,
Don
_____________________________________________________
State Bar Declines to Pass Rule 2.4
CDRC and other organizations joined together in protest of changes in the State Bar Rules Revision Commission's (RRC) proposal that would have given jurisdiction to the Bar to discipline mediators and arbitrators based upon violations of standards that were never meant to form the basis for discipline. Specifically: the draft rules transmuted aspirational standards in court-connected programs, and arbitrator ethics standards for contractual arbitration into disciplinary grounds. On January 26th, the RRC met via teleconference in
_____________________________________________________
March 16 Meeting via
Video Conference
LIAISONS AND INTERESTED PERSONS can also access the March 16 meeting by video-conference from the State Bar office in
For more information, go to www.calbar.ca.gov/ethics Commission for the Revision of the Rules of Professional Conduct.
_____________________________________________________
Revised Drafts for Review
View and compare the proposed revisions in PDF form, by clicking on the following links.
_____________________________________________________
Rules Revision Commission Meeting in
The Rules Revision Commission's next meeting will be held as follows:
State Bar --
(415) 538-2167
News Alert March 2
CDRC 2007
President
Don Fobian
Dear CDRC Member:
We reported to you in February and again in early March concerning an attempt to turn standards governing court-connected mediation and contractual arbitration into disciplinary standards for lawyers who are acting as ADR neutrals. The State Bar Rules Revision Commission (RRC) has been considering incorporating those standards into a new Rule of Professional Conduct for lawyers, Rule 2.4.
The RRC discussed this proposal again at their most recent meeting, on March 16th. Several organizations united against the adoption of these standards, including the California Dispute Resolution Council. As occurred during the January 26th meeting, when Mike Carbone represented CDRC, the RRC decided not to adopt the most problematic sections of the new rule.
Steve Cerveris spoke on behalf of the State Bar ADR Committee during the discussion. Jay Welsh represented JAMS. Jim Madison submitted written testimony on CDRC’s behalf and was in attendance to represent us. Immediate Past-president John Blackman has been active in discussions and correspondence with members of the RRC. Each of these organizations, as well as the CJA, opposed the new disciplinary rules as being unnecessary and overly problematic. No organization spoke in support of the proposed rule revision.
Once again, the combined efforts of CDRC and other California ADR organizations were able to defer this issue for a later date. But the fight is not over. From here, the recommendations of the Rules Revision Commission go to the State Bar Board of Governors, and the recommendations of the Board of Governors then go to the Supreme Court. We expect this proposal may resurface at some point along the way, so we will continue to monitor the situation for you.
One of the things we know well at CDRC is that despite all our efforts and all our victories, our work is never over. Please show your support for our continued efforts to keep you in business and to keep ADR pure by keeping your membership in CDRC current, and by encouraging other ADR neutrals you know to also join CDRC.
CDRC email blast
CDRC 2007
President
Don Fobian
Last fall, CDRC filed an amicus curiae letter with the California Supreme Court, urging the court to accept the petition for review filed in Simmons v. Ghaderi (2006) 143 Cal.App.4th 410, an important mediation confidentiality case. The Supreme Court granted review, and on May 2, CDRC lodged an application for leave to file an amicus curiae brief. Last week the Supreme Court granted CDRC’s application and ordered the amicus brief filed.
Jim Madison and John Blackman co-authored an exceptionally well-written brief which may be found at http://www.cdrc.net/pg1026.cfm .
Judicial Council Comment Period
Mediation used to be so simple. Parties participated in a confidential process and they did so voluntarily. CDRC has always supported these standards to a very high degree. We still do. With changing times, mediation is increasingly considered to be an adjunct to litigation, though it was designed to be an alternative. With the new view comes a “need” for oversight. That is the view of the Judicial Council, who watches over court connected programs.
While CDRC agrees that mediation is a process that should not be abused by those who would practice in an unprofessional manner, we are ever vigilant that voluntarism and especially confidentiality are preserved. The question arises, “How can the courts investigate charges of mediator complaints without infringing on the statutory demands of mediation confidentiality?”
This is a tough question! We all want mediation to be a respected practice. Are there enough complaints against mediators to justify violation of confidentiality? What kinds of complaints are being lodged? If we lose the right to confidentiality, do we lose the essence of mediation principle?
The Judicial Council is asking for our comments. We have until June 20th to respond. You can read the proposed text or direct your comments directly to the Judicial Council at http://www.cdrc.net/pg1027.cfm
The CDRC board of directors will be discussing this important issue at our meeting in