Current through Register Vol. 46, No. 12, March 20, 2024
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:
(1) escrow violations;
(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.