A.CODE OF ETHICS FOR COURT-ANNEXED ADR NEUTRALSIntroduction
Rule 114 of the Minnesota General Rules of Practice provides that alternative dispute resolution (ADR) must be considered for certain civil cases filed in district court. The ADR Ethics Board, appointed by the Supreme Court, approves individuals and Community Dispute Resolution Programs (CDRPs) that are qualified under Rule114 to act as Neutrals in court-referred cases.
This Code of Ethics governs Neutrals appointed or serving by agreement of the parties in any court-annexed ADR proceedings.
Individuals and rostered CDRPs, and individuals who volunteer for rostered CDRPs, when providing ADR services under Rules 114 or 310 of the General Rules of Practice consent to the jurisdiction of the ADR Ethics Board and to compliance with this Code of Ethics. The purpose of this Code is to provide standards of ethical conduct to guide Neutrals who provide ADR services, to inform and protect consumers of ADR services, and to ensure the integrity of the various ADR processes.
In order for ADR to be effective, there must be broad public confidence in the integrity and fairness of the process. Neutrals have a responsibility not only to the parties and to the court, but also to the continuing improvement of ADR processes. Neutrals must observe high standards of ethical conduct. The provisions of this Code should be construed to advance these objectives.
Neutrals should explain the ADR process to the parties before beginning a proceeding. Neutrals should not practice, condone, facilitate, or promote any form of discrimination on the basis of race, color, creed, religion, national origin, sex, marital status, status with regard to public assistance, disability, sexual orientation, or age. Neutrals should be aware that cultural differences may affect a party's values and negotiating style.
Failure to comply with any provision in this Code of Ethics may be the basis for the ADR Ethics Board to impose any of the remedies or sanctions set out in these rules, or for other actions by the Minnesota Supreme Court.
Violation of a provision of this Code shall not create a claim for relief or apresumption that a legal duty has been breached. Nothing in this Code should be deemed to establish or augment any substantive legal duty on the part of Neutrals.
Subdivion 1. Impartiality. A Neutral shall conduct the dispute resolution process in an impartial manner and shall serve only in those matters in which the Neutral can remain impartial . Impartiality means freedom from favoritism or bias either by word or action, and a commitment to serve all parties as opposed to a single party. If at any time the Neutral is unable to conduct the process in an impartial manner, the Neutral shall withdraw.Subd. 2. Conflicts of Interest.(a) A conflict of interest is a direct or indirect financial or personal interest in the outcome of the proceeding or any existing or past financial, business, professional, family or social relationship which is likely to affect impartiality or which might reasonably create an appearance of partiality or bias. The Neutral must be committed to the parties and the ADR process and not allow pressures from outside the ADR process to influence the Neutral's conduct or decisions. A Neutral shall disclose all actual and potential conflicts of interest reasonably known to the Neutral. After disclosure, the Neutral may serve, with the consent of the parties . Even with the consent of the parties, the Neutral must exercise caution in circumstances that would raise legitimate questions about the integrity of the ADR process. If a conflict of interest impairs a Neutral's impartiality, the Neutral shall withdraw regardless of the consent of the parties. Without the consent of all parties, and for a reasonable time under the particular circumstances, a Neutral who also practices in another profession shall not establish a professional relationship in that other profession with one of the parties, or any person or entity, in a substantially factually related matter.(b) Neutrals acting as arbitrators shall disclose to the parties in writing at the time of selection, or promptly after it becomes known, any actual or potential conflict of interest known to the Neutral arbitrator.Subd. 3. Competence. No person shall serve as a Neutral unless they possess the qualifications and ability to fulfill the role that the Neutral has been requested or assigned to serve and must decline appointment, request assistance, or withdraw when a dispute is beyond the Neutral's competence. No individual may act as a Neutral for compensation without providing the parties with a written statement of qualifications prior to beginning services. The statement shall describe the Neutral's educational background and relevant training and experience in the field.Subd. 4. Confidentiality. The Neutral shall discuss issues of confidentiality with the parties before beginning an ADR process, including limitations on the scope of confidentiality and the extent of confidentiality provided in any private sessions that a Neutral holds with a party. The Neutral shall maintain confidentiality as required by Rules 114.08, 114.10, and 114.11 of the General Rules of Practice , and any additional agreements made with or between the parties.Subd. 5.Quality of the Process. A Neutral shall work to ensure a quality process. A quality process requires a commitment by the Neutral to diligence and procedural fairness. A Neutral shall ensure that the reasonable expectations of the parties concerning the timing of the ADR process are satisfied and shall exert every reasonable effort to expedite the process, including prompt issuance of written reports, awards, or agreements. A Neutral shall withdraw from an ADR process or postpone a session if the process is being used to further illegal conduct, or if a party is unable to participate due to drug or alcohol abuse, or other physical or mental incapacity. A Neutral shall not knowingly make false statements of fact or law.Subd. 6. Advertising and Solicitation. A Neutral shall be truthful in advertising and solicitation for alternative dispute resolution. A Neutral shall make only accurate and truthful statements about any alternative dispute resolution process, its costs and benefits, the Neutral's role and her or his skills and qualifications. A Neutral shall refrain from promising specific results. In an advertisement or other communication to the public, a Neutral who is on the Roster of Qualified Neutrals may use the phrase "qualified neutral under Rule 114 of the General Rules of Practice." It is not appropriate to identify oneself as a "certified" Neutral.
Subd. 7.Fees; Requirement of Written Agreement for ADR Services; Prohibited Actions.(a)Fees. A Neutral shall fully disclose and explain the basis of compensation, fees and charges to the parties. The parties shall be provided sufficient information about fees at the outset to determine if they wish to retain the services of a Neutral. A Neutral shall not enter into a fee agreement that is contingent upon the outcome of the alternative dispute resolution process. The fee agreement shall be included in the written agreement and shall be consistent with a court order appointing the Neutral. A Neutral shall establish a protocol for regularly advising parties on the status of their account and requesting payment of fees. If one party does not pay the fee, and another party declines to cover the fee, the Neutral may withdraw, proceed, or suspend services for both parties until payment is made. If proceeding with services, the Neutral shall not refuse participation by any party based on payment status. A Neutral who withdraws from a case shall return any unearned fee to the parties. A Neutral shall not give or receive any commission, rebate, or similar remuneration for referring a person for alternative dispute resolution services.(b)Requirement of Written Agreement for ADR Services. In any civil or family court matter in which ADR is used, the Neutral shall enter into a signed written agreement for services with the parties either before or promptly after the commencement of the ADR process. The written agreement shall be consistent with any court order appointing the Neutral. If any court order requires the Neutral to do something that would violate these rules, the Code of Ethics for Court-Annexed ADR Neutrals, or any applicable court rules or statutes, the Neutral must decline appointment or defer appointment until the parties obtain amendment of the appointment order or obtain a subsequent order. The written agreement shall include, at a minimum, the following:(1) A description of the role of the Neutral.(2) If the Neutral's role includes decision making, whether the Neutral's decision is binding or non-binding.(3) An explanation of confidentiality and admissibility of evidence.(4) If the Neutral is to be paid, the amount of compensation, how the compensation will be paid, and include a notice that the Neutral could seek remedies from the court for non-payment pursuant to Rule 114.11(b) of the General Rules of Practice for the District Courts.(5) If adjudicative, the rules of the process.(6) That the Neutral must follow the Code of Ethics for Court-Annexed ADR Neutrals and is subject to the jurisdiction of the ADR Ethics Board.(7) Neutrals for facilitative and evaluative processes shall include the following language in the agreement signed at the commencement of the process:(A) the Neutral has no duty to protect the interests of the parties or provide them with information about their legal rights;(B) no agreement reached in this process is binding unless it is put in writing, states that it is binding, and is signed by the parties (and their legal counsel, if they are represented) or put on the record and acknowledged under oath by the parties;(C) signing a settlement agreement may adversely affect the parties' legal rights;(D) the parties should consult an attorney before signing a settlement agreement if they are uncertain of their rights; and(E) in a family court matter, the agreement is subject to the approval of the court.(c) Prohibited Actions by Facilitative and Evaluative Neutrals. A Neutral in a facilitative or evaluative process shall not:(1) Draft legal documents that are intended to be submitted to the court as an order to be signed by a judge or judicial officer;(2) Regardless of a Neutral's qualifications or licenses, provide therapy to either party nor provide legal representation or advice to any party or engage in the unauthorized practice of law in any matter during an ADR process; or(3) Require a party to stay in the ADR process or attempt to coerce an agreement between the parties.Subd. 8.Self-Determination in Mediation. A mediator shall act in a manner that recognizes that mediation is based on the principle of self-determination by the parties.