1995 Adopted Principles California Dispute Resolution Council

1995 Adopted Principles

Adopted June 17, 1995
Amended October 7, 1995

Definitions
PRINCIPLES
       Availability
       Importance of Selection of Neutrals
       Confidentiality

Definitions

1. "Alternative Dispute Resolution" or "ADR" refers to those processes, other than litigation or governmental administrative agency adjudication, employed to resolve disputes by decision (e.g., arbitration), recommendation, (e.g., fact-finding or neutral evaluation), or facilitation of the parties' communication, understandings, and willingness and ability to resolve their own disputes (e.g., mediation).

2. "Arbitration" refers to the adjudication of a dispute by one or more arbitrators who issue an "award" (or decision) after each party to the dispute has had an opportunity to present evidence and argument and counter that offered by the other party(ies). The procedure is usually more informal than litigation but by law or agreement may include limited discovery and application of rules of evidence. Unless otherwise specified by applicable law or a governmental agency, or agreed by the parties, an award in a proceeding in which the parties have made a written agreement to arbitrate is binding and enforceable by the courts, subject to the limited review provided by law. A provision in a contract providing for the referral of future disputes between the contracting parties to arbitration is a voluntary agreement to arbitrate which is enforceable by the courts, subject to such exceptions as may be provided by law or the contract.

3. "Dispute Resolution Process" includes, but is not limited to, arbitration, mediation, conciliation, neutral evaluation, fact-finding, mini-trial, facilitation, combinations of mediation and arbitration, judicial reference, and, unless the context otherwise indicates, settlement conferences, administrative adjudication and litigation.

4. "Dispute Resolver" includes persons or panels with the authority to resolve a dispute for the parties, such as an arbitrator or judge, as well as those who facilitate the parties' resolution of their dispute, such as a mediator, or make non-binding recommendations to help resolve the dispute, such as a fact-finder or advisory arbitrator.

5. "Mediation" means a process in which a neutral person or persons facilitate communication between disputants to assist them in reaching a mutually acceptable agreement.

6. "Mediative processes" includes processes in which the third party uses facilitation techniques common to mediation but also performs other functions. These processes may include mini-trials, ombudsman, neutral evaluation, conciliation, consensus decision-making, facilitation, and aspects of med-arb, and arb-med.

Dispute Resolution Principles

I. Availability. Alternative methods of dispute resolution shall be widely available to potential users in all types of cases.

A. Voluntary Participation. The values of a democratic society are maximized when parties voluntarily elect to participate in a dispute settlement process of their own choosing. To the extent participation in an alternative dispute resolution process is mandated, or the product of an alleged agreement not voluntarily entered into, the resolution of the dispute should not be binding. Nor should access to public administrative or litigative dispute resolution processes be precluded unless knowingly and voluntarily waived by the affected party.

B. Informed Consent. Parties should be free to choose whatever dispute resolution process best meets their needs. The parties to a dispute should not be considered as voluntarily consenting to participate in a dispute resolution process until the key features of that process have been made known to the parties. When parties are required to participate in a mediative proceeding, they should retain the option to withdraw after commencement of the process, without prejudice to their legal rights and other remedies (subject to limitations imposed by law in child custody conciliations and collective bargaining between unions and employers).

C. Universal Access. The early, voluntary resolution of disputes through processes of the parties' own choosing is both cost-effective and consistent with democratic values. In varying degrees, alternative dispute resolution processes permit parties to retain control over their own disputes and to shape resolutions that meet their particular needs, and are, therefore, likely to be voluntarily complied with. This is particularly true of mediation, since the neutral third party has no formal decision-making power to determine the outcome. To encourage access of all citizens to appropriate dispute resolution processes, government and the courts should promote the informed use of ADR processes through education, example, and deployment of public resources.

1. Education. Courts, government agencies, the organized bar and dispute resolution providers share responsibility for furnishing information to the public, lawyers, judges, court and other government personnel concerning the nature and availability of dispute resolution processes, differences among processes, likelihood of savings in cost and time, and the legal and other consequences of participation in such processes, including the advantages and disadvantages of using a specific process depending upon the particular dispute, parties and available resources and time. 2. Funding. No person should be denied access to dispute resolution services because of an inability to pay. Government and community organizations should continue to make mediation and other dispute resolution services available for those who cannot afford to pay for them. Disputants with the ability to pay may be expected to contribute financially to administrative costs, fees for third-party dispute resolvers, and other legitimate user charges. 3. Government as a Model. Government agencies should be encouraged to educate their personnel concerning dispute resolution processes and to seek opportunities to utilize ADR, whenever cost-effective and otherwise feasible, in resolving or preventing internal conflicts and in effectuating their public decision-making functions.

II. Selection and Qualifications of Neutrals. Parties who participate in non-litigative dispute resolution processes should be free to mutually agree upon the selection of neutral dispute resolvers, or the process for making such selection.

A. Competency. Qualification criteria of ADR providers should be based upon relevant dispute resolution training, experience and performance. As a general principle, ADR providers should not be required to possess specific academic degrees or professional licenses, nor should the possession of a specific academic degree or professional license disqualify a person from acting as an alternative dispute resolver in particular types of disputes.

B. Qualifications. The necessary qualifications to provide effective dispute resolution services vary with the context in which the dispute arises, and may include legal, cultural, and other factors, as well as participant expectations. The freedom of disputants to select their own alternative dispute resolver should not be denied by allowing a state or other single entity to set qualification standards applicable to all cases. The greater the degree of choice the parties have over the dispute resolution process, program or neutral, the less mandatory the qualification requirements should be. Whatever standards are set should be a product of a careful, deliberative process involving representatives of all affected interests, including alternative dispute resolvers, judges and other court personnel, attorneys, consumers, and dispute resolution trainers.

C. Credentialing. Any credentialing program that is adopted should be based on relevant dispute resolution training, experience and performance; not require particular professional licenses or academic degrees; not tend to exclude minority, disadvantaged, or disabled persons because of cost, reliance on recommendations of established persons, or otherwise; be responsive to input from providers, trainers and consumers of alternative dispute resolution; and not constitute a license which would preclude non-credentialed persons from holding themselves out to perform or performing as alternative dispute resolvers.

D. Ethical Standards. Alternative dispute resolution providers should be required to adhere to high standards of ethical conduct and to observe the stated responsibilities of neutrals as established by recognized dispute resolution professional and practice associations, including the Society of Professionals in Dispute Resolution, the Academy of Family Mediators, the American Arbitration Association, Judicial and Arbitration-Mediation Services/EnDispute, and bar associations, local and state agencies, and other organizations and entities relevant to particular types of processes or disputes.

E. Impartiality. Unless the parties voluntarily agree otherwise, alternative dispute resolvers should be free from bias or interest concerning the resolution of the dispute, and the parties should have a reasonable opportunity to become informed concerning any reasonable basis for challenging the impartiality of the dispute resolver. Potential grounds for challenging the impartiality of an alternative dispute resolver may be required to be disclosed by the neutrals being considered for selection or made known by other means appropriate or traditional for the type of dispute resolution being employed.

F. Compensation. Neutral alternative dispute resolvers are entitled to reasonable compensation for their services. Compensation is especially appropriate when parties voluntarily select the dispute resolution process and dispute resolver, and have the financial ability to pay for the services. Artificial caps should not be placed upon an alternative dispute resolver's compensation. However, reasonable limitation on fees may be appropriate when necessitated by inability of the parties to pay full compensation, lack of government funds, or the public interest nature of the dispute resolution services.

G. Accountability/Immunity. Alternative dispute resolvers are accountable to exercise their good faith judgment, maintain professional standards of conduct, and accurately represent their qualifications. This accountability is for the benefit of the disputing parties, governmental or private selecting and administrative entities, the dispute resolution profession, and the public's perception of the justice of the process being employed. In order to exercise their functions impartially and without fear of reprisal, mediators, arbitrators, and similar private dispute resolvers, as well as public judges, hearing officers and conciliators should have immunity from private legal actions for damages, subpoena, injunctions, or similar judicial remedies, but may, in accordance with established law, be removed from office or subject to discipline or sanction by public bodies or professional associations.

H. Choice of Neutrals. To the maximum practical extent, parties should be free to select providers of ADR services for their disputes. Even when party participation has been mandated, the disputants or their representatives should be given a reasonable time in which to agree upon the selection of a provider in lieu of designation by a judge or other third party. Parties to an ADR proceeding should have an opportunity to jointly select their dispute resolver without unnecessary restrictions, provided that disclosure is made of recent prior selection by the same party of the same dispute resolver, and other information which might reasonably raise a question as to the provider's impartiality, and the parties may challenge any neutral dispute resolver on the basis of bias, interest, previous or existing business or close personal relationships, or institutional loyalties.

III. Confidentiality. Confidentiality and public policies supporting confidentiality are fundamental to the success of many alternative dispute resolution processes.

A. Importance of Confidentiality

1. Mediative Processes: To reach a complete and satisfactory resolution of a dispute, it is usually essential that all parties to a mediative process be free to speak truthfully and fully without fear that their own words might be used against them in an adversarial proceeding. The mediator's or mediation service's communications with disputing parties prior to a mediation are integral parts of the mediation process. Once a person agrees to participate in a mediation, all statements made to a mediator or mediation service and all documents created in the process of initiating the mediation are inadmissible communications protected in the same manner as other mediation communications, whether or not all parties eventually agree to participate. 2. Arbitration: Since confidentiality is often a motivating factor for party use of arbitration, such expectation should prevail in the absence of expressed party agreement or overriding public policy. 3. Med-Arb: Since mediation may involve confidential disclosures to a mediator which normally would not be made to an arbitrator, the same person should not be assigned, nor accept, the responsibility of serving in both capacities in the same matter unless the parties consent to this dual role after being advised of its potential adverse consequences.

B. Declarations and Findings. Mediators have no decision-making authority, and cannot ethically require disputants to agree to a particular settlement or coerce them to settle at all. Neither courts, legislatures, or other entities or persons should require or permit mediators, nor should mediators consent, to make declarations or findings of any kind regarding a mediation or its possible outcome beyond a statement of agreement, non-agreement, or, when authorized by the parties, partial agreement, unless all parties in the mediation expressly agree in writing to permit a broader report or statement.

C. Exceptions. In limited situations, the need for confidentiality may be outweighed by other important public policies, such as the requirement of some professionals to report suspected instances of child abuse. These situations should be narrowly limited to achieve the overriding public purpose, and, whenever likely to be applicable, third party dispute resolvers should disclose these exceptions to the parties in opening explanations of the ADR process and agreements or requirements concerning confidentiality.