USC Gould Search

Course Descriptions

Course Descriptions

ADR Ethics (Fall 2017)

Course Description

 

            This is a required course for completion of the ADR Certificate.  The ADR Ethics course covers ethical obligations of attorneys and neutrals in commonly used ADR processes, including negotiation, mediation and arbitration.  The course will be divided between two instructors, one focusing on arbitration and the other on mediation and negotiation, and will be presented through both lectures and interactive experiences. 

            The course will examine applicable ethical standards as mandated by statutory law and court rules, interpreted by case law, and proposed by trade organizations or service providers, and the practices and situations most frequently giving rise to ethical questions.  California, federal and ABA ethical rules and practices will be emphasized, including uniform model rules, with some reference to international ethical standards in commercial cases.  At least one class will be taught by both professors and address ethical considerations and best practices where both arbitration and mediation processes are contemplated.

D.    Course Objectives

            Satisfactory completion of this course will enable the student to identify and implement applicable ethical guidelines in the context of negotiation, mediation and arbitration situations, to recognize typical ethical issues as they arise in those situations, and to employ appropriate best practices and procedures. 

II.  Course Requirements & Guidelines

A.    Class Preparation and Participation

Class discussion will commence with the assumption that everyone is thoroughly familiar with the assigned materials and is prepared to participate in discussions in a professional manner. 

B.     Attendance and Classroom Behavior

Regular and punctual attendance is expected of all students.  Electronic devices for note taking are permitted, but headphones are not permitted during class.  Students may record classes, unless otherwise directed by the instructor.

C.    Grading Criteria

Grading will be based 20% on class participation and 80% on a written exam.  There will not be a term paper.   No prepared in-class presentation will be required. 

III. Topical Outline

1.      Introduction to Class & An Overview of the Ethical Rules Applicable to Adjudicatory (Arbitration) and Conciliatory (Mediation, Negotiation) Processes

a.       The landscape of ADR processes:  contractual; court ordered; voluntary

b.      Mediation ethics

c.       Arbitration ethics.

2.      General Negotiation Standards and Ethics:

a.       Basic ethic rules and standards applicable to any negotiation no matter whether acting as attorney or mediator.

3.      Negotiation Standards and Ethics for Attorneys:

a.       The difference between attorney client privilege and confidentiality

b.      Applicable Federal Rules.

c.       Applicable ABA  Model Rules of Conduct

d.      Applicable California Rules of Professional Conduct and State Bar of California Attorney Guidelines of Civility and Professional

e.       ABA Ethical Guidelines for Settlement Negotiation

f.       Applicable ethical opinions from ABA, State Bar of California and County of Los Angeles ( e.g. Puffing vs Misrepresentation)

g.      Informed Consent, and Evidentiary Admissibility Issues

h.      Potential conflicts of interest between attorney and client.

4.      Negotiation Standards and Ethics for Mediators:

a.       UNCITRAL Model Law on International Commercial Conciliation

b.      Applicable Federal Court General Orders and programs for court connected mediations

c.       Applicable California Rules for Court for court ordered or court connected mediations

d.      ABA Model Standards of Conduct for Mediators

e.       Applicable California State Bar Rules re: mediators

f.       Applicable sections of the Uniform Mediation Act

g.      Applicable ethics opinions of ABA Section on Dispute Resolution

h.      Mediator incompetency (and exceptions) and mediator immunity (and exceptions)

i.        Informed Consent

j.        Applicable federal and state case law.

k.      Potential conflicts of interest and otherwise between mediator, attorneys and participants.

5.      Mediation Confidentiality:

a.       Definition- what it is and what it is not and its exceptions

b.      Difference between mediation and settlement negotiations re: confidentiality

c.       Its application in federal court

d.      Its application under the Uniform Mediation Act

e.       Its history, current and future status in California

f.       Its application in other states of United States

g.      Informed Consent and Evidentiary Admissibility Issues

h.      Issues involving settlement agreements

i.        Applicable federal and state case law.

6.      Applicable Standards: Defining Ethical Standards in Arbitration:

a.       What are ethics, and what standards apply?

b.      Case authority

c.       Nonstatutory authority (ABA/AAA & JAMS codes of ethics)

d.      Statutory authority (FAA, RUAA, California).

7.      Disclosures Required of Arbitrators:

a.       Specific requirements

b.      General “catchall” requirements

c.       Time requirement/duration of duty

d.      Nondisclosure or partial disclosure

e.       Waiver of disclosure requirements.

8.      Consequences of Violations of Standards & Canons; Immunity of Arbitrators & Arbitral Providers:

a.       Arbitrators

            i)       Liability

            ii)      Insurance

b.      Providers

c.       Competence to participate/testify

d.      Discovery of information held by arbitrators.

9.      Confidentiality; Ex Parte Communications; Offers of Future Employment.

10.  When Federal Preemption of Disclosure Obligations Occurs; clash between California and federal law.

11.  Ethical standards applicable in International & Consumer Arbitrations.

12.  Prior Censure; Repeat Player; Financial Interest in Outcome.

13.  Considerations Unique to Party-Appointed Arbitrators.

14.  Neutrals serving as both Arbitrator and Mediator:

a.       Binding Mediation

b.      Arbitrator asked to serve as mediator

c.       Mediator asked to serve as arbitrator

d.      Neutral Evaluation and other non-adjudicatory fact finding processes

e.       Pre-dispute clause drafting to avoid ethical dilemmas.

15.  Advertising, marketing and use of social media:

a.       Mediators

b.      Arbitrators

c.       Lawyers.

Course Details

  • Unit Value: 2
  • Grading Options: Numerical Only
  • Schedule: T 6:00 pm - 7:50 pm
  • Room Number: Room 101
  • Exam: In-class exam
  • Writing Requirement: No
  • Skills Requirement: No
  • Participation: 20% of grade