DISPUTE RESOLUTION PRINCIPLES
(As revised 2010, and first published by the CDRC in 1995)
Since 1995, copies of the CDRC’s Dispute Resolution Principles have been provided to many members of the California Legislature and their staffs, as well as to the Governor’s office. Copies have also been submitted with amicus briefs in significant cases heard by appellate courts. The Principles have been used to teach and to guide, and have proved a valuable touchstone in the process of drafting, amending and interpreting legislation involving ADR issues.
However, it has been 16 years since the Principles were adopted, and the CDRC Board of Directors decided to take a fresh look. A proposed revised version was disseminated for public comment. The current version reflects edits based on comments received since the last CDRC Annual Conference. Please take a careful look and let us know your comments. Your insights concerning this important document will be highly valued.
CDRC Dispute Resolution Principles:
Section 1: Voluntariness and Availability
Section 2: Integrity of the Process
Section 3: Confidentiality
“Alternative Dispute Resolution” or “ADR” refers to dispute resolution processes other than traditional litigation and trial in a court of law or adjudication by governmental administrative agency. Alternative Dispute Resolution includes processes employed to resolve disputes by decision (e.g., arbitration), analysis and recommendation, (e.g., fact-finding or neutral evaluation), or facilitation of communication and understanding among disputing parties to help them achieve their own resolution of their dispute (e.g., mediation).
“Arbitration” refers to the adjudication of a dispute by one or more neutrals (“arbitrators”) who issue a decision (“award”) after each party to the dispute has had an opportunity to present evidence and argument. Arbitration is often agreed to as part of a contract before the dispute arises. It is similar in structure to traditional litigation and trial, however, proceedings are typically less formal and conducted in private, rules of evidence are often more relaxed, and parties join in selecting their decision maker. Arbitrators frequently are attorneys or retired judges, but parties often select non-lawyers who are knowledgeable in the subject area of the dispute. Arbitration can be non-binding (“advisory arbitration”), but arbitration awards are more commonly binding, and the losing party has limited rights of appeal.
“Dispute resolution process” includes litigation, trial, arbitration, mediation, facilitation, conciliation, neutral evaluation, fact-finding, collaborative law, mini-trial, summary jury trial, judicial reference, or any combination of these, and, unless the context otherwise indicates, settlement conferences and administrative adjudication.
“Dispute resolver” includes a neutral individual or panel of neutral individuals with the authority to resolve a dispute for the parties (such as an arbitrator or judge), as well as those who facilitate the parties’ own resolution of their dispute (such as a mediator), or those who make non-binding observations or recommendations to help resolve the dispute (such as a fact-finder, neutral evaluator, or advisory arbitrator). “ADR neutral” refers to a dispute resolver in an ADR process. “ADR provider” refers to an individual or entity other than a dispute resolver that provides the services of ADR neutrals or administers alternative dispute resolution processes, or both.
“Mediation” refers to a process in which one or more ADR neutrals (“mediators”) facilitate communication between disputing parties to help them reach their own resolution of their dispute in a confidential setting.
“Mediative process” includes dispute resolution processes in which an ADR neutral uses techniques commonly used in mediation, but also performs other functions. Among these processes are neutral evaluation, conciliation, facilitation, collaborative law, consensus decision-making, facilitation, ombuds, and the use of mediation or mediation techniques in conjunction with fact-finding or decision-making by the neutral.
Section 1: Voluntariness and Availability.
An agreement to participate in an alternative dispute resolution process should be voluntary, and any agreement reached in mediation or a mediative process should be consensual and uncoerced. Every person should have meaningful access to appropriate ways to resolve their disputes.
A. Voluntary Participation: The values of a free society are maximized when parties voluntarily elect to participate in a dispute resolution process of their own choosing. No person should be precluded from having access to litigation in the courts or public administrative systems unless they have knowingly and voluntarily waived that right. To the extent participation in an alternative dispute resolution process is mandated, or the product of an alleged agreement not entered into knowingly and voluntarily, the resolution of the dispute should not be binding.
B. Informed Consent: Parties generally should be free to choose whatever dispute resolution process best meets their needs. No party to a dispute resolution process should be considered as having knowingly and voluntarily consented to participating in that process until the key features of that process have been made known to that party. When parties are required to participate in a mediative process they should retain the ability to withdraw after commencement of the process, without prejudice to their legal rights or other remedies (subject to limitations imposed by law, such as in child custody conciliations or in collective bargaining agreements between unions and employers).
C. Self-Determination: When the dispute resolver acts in a facilitative capacity (such as a mediator) as distinguished from a determinative capacity (such as an arbitrator or judge), the disputing parties should be allowed to reach a resolution of their dispute freely, willingly and knowingly, without coercion. When parties craft their own resolution of a dispute, the resolution is more likely to endure without the need for external enforcement.
D. Universal Access: The early resolution of disputes through processes of parties’ own choosing is both cost effective and consistent with democratic values. Government and the courts should encourage access to appropriate dispute resolution processes for all persons, and should promote the informed use of ADR processes through education, example, and deployment of public resources.
1. Education: Courts, government agencies, the organized bar, dispute resolvers and ADR 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, the 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 given the particular dispute, parties and available resources.
2. Funding: No person should be denied access to dispute resolution services because of an inability to pay. Government and community organizations should make mediation and other dispute resolution services available to those who cannot afford to pay for them. Disputants with the ability to pay should 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. Alternative dispute resolution processes can and should be used by government agencies not only to prevent or resolve internal conflicts, but also to enhance the quality and effectiveness of governmental decision-making functions.
Section 2: Integrity of the Process.
The ADR community should self-regulate the provision of ADR services in order to ensure the integrity of ADR processes and services. Dispute resolvers, ADR neutrals and ADR providers should be impartial, and competent to perform the task accepted, and should adhere to recognized ethical guidelines.
A. Competence and Quality of Services Provided: Qualification criteria for dispute resolvers should be based upon relevant dispute resolution training, experience and performance. As a general principle, dispute resolvers 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 a dispute resolver in any particular type of dispute.
The qualifications necessary 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 dispute resolver should not be denied by setting qualification standards applicable to all cases or any one process. If standards are set, they should be the product of a careful, deliberative process involving representatives of all affected interests, including but not limited to dispute resolvers, community ADR programs and other ADR providers, consumers, judges and court administrators, attorneys, and ADR trainers.
Any credentialing program that may be adopted should be based on relevant dispute resolution training, experience and performance; should not require particular professional licenses or academic degrees; should not tend to exclude minority, disadvantaged, or persons with disabilities because of cost, reliance on recommendations of established persons, or otherwise; must be responsive to input from all affected interests, including but not limited to dispute resolvers, community ADR programs and other ADR providers, consumers, judges and court administrators, attorneys, and ADR trainers; and should not involve or require a license which would preclude non-credentialed persons from providing or holding themselves out as a dispute resolver, ADR neutral, or ADR provider.
B. Impartiality: Unless parties knowingly and voluntarily agree otherwise, dispute resolvers and ADR providers should not have any interest in the outcome or resolution of the dispute, and they should be capable of setting aside any biases in order to act impartially in rendering their services. Parties should have a reasonable opportunity to become informed concerning any reasonable basis for challenging the impartiality of the dispute resolver or ADR provider. Potential grounds for challenging the impartiality of a dispute resolver or ADR provider should always be disclosed, from the outset through the duration of the process.
C. Ethical Standards: Dispute resolvers, ADR neutrals and ADR providers should adhere to high standards of ethical conduct as established by recognized dispute resolution professional and practice associations, the courts and bar associations, state and local agencies, and other organizations and entities involved with dispute resolution.
D. Compensation: Dispute resolution professionals should be 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. Arbitrary caps should not be placed upon a dispute resolver’s or ADR provider’s compensation. However, reasonable limitation on fees or costs may be appropriate when necessitated by inability of the parties to pay full compensation, or by the public interest nature of the dispute resolution services.
E. Accountability/Immunity: Dispute resolvers should be accountable to exercise their judgment in good faith, maintain professional standards of practice and conduct, and accurately represent their qualifications. This accountability is for the benefit of disputing parties, 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 all public or private dispute resolvers should have immunity from legal actions for damages, subpoenas, injunctions, or similar judicial action, but may, in accordance with established law, be removed from office or subject to discipline or sanction by appropriate public bodies or professional associations.
F. Choice of Process, Neutrals and Timing: To the maximum practical extent, the parties to a dispute should have the freedom to choose which dispute resolution process they want to use, which ADR provider or ADR neutral they want to use, and when in the life of the dispute to engage in an ADR process. Parties to an ADR proceeding should have the opportunity to select their dispute resolver jointly without unnecessary restrictions. Dispute resolvers should timely disclose information which might reasonably raise a question as to the dispute resolver’s ability to provide services impartially, including disclosure of recent engagement by or significant contact with any of the disputants, providers or participants in the dispute resolution process. The parties should have a meaningful opportunity to challenge any dispute resolver, ADR neutral or ADR provider on the basis of bias, interest, partiality, close business or personal relationships, or institutional loyalties. Agreements reached voluntarily through a facilitative process, such as mediation, should not be subject to being set aside because of bias or partiality in the dispute resolver. However, where an adjudication or binding determination by a dispute resolver is the result of undue bias or partiality, procedures should be available for the aggrieved party to challenge the result.
Section 3: Confidentiality.
Confidentiality and public policies supporting confidentiality are fundamental to the viability and success of many alternative dispute resolution processes, particularly mediation and other mediative processes.
A. Necessity of Confidentiality.
1. Mediative Processes: To maximize the potential for resolving a dispute in mediation, it is essential that all parties be free to speak truthfully and fully without fear that their words might be used against them in an adversarial proceeding. Without confidentiality, the trust necessary for candid, self‑determined exploration of differences and resolution of disputes would be compromised and mediation would become a less effective dispute resolution process. Communications with a prospective mediator or ADR provider in anticipation of agreement upon mediation are integral parts of a mediation process and should be considered within the scope of mediation confidentiality. Once parties have agreed to mediation, all statements made to a mediator, ADR provider, or other participants in the mediation during the course of the mediation, whether before, during or after a mediation conference, and all writings created for the purpose of, or pursuant to a mediation or mediation consultation, should not be admissible or subject to discovery, and disclosure should not be compelled, in any noncriminal proceeding. All communications, negotiations, or settlement discussions by and among participants in a mediation or mediation consultation should remain confidential at all times, at the mutual option of the affected participants, including after conclusion of a mediation.
2. Arbitration: Confidentiality is often a motivating factor for parties to agree to arbitration. Reasonable expectations of confidentiality should prevail in the absence of agreement by the parties otherwise 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 a facilitative and adjudicative capacity in the same matter unless the parties knowingly and willingly consent to this dual role after being fully informed of its potential adverse consequences.
B. Declarations and Findings: Mediators should have no decision-making authority and ethically cannot require disputants to agree to particular settlement terms or coerce them to settle. Neither courts, legislatures, nor other entities or persons should require or permit a mediator, nor should any mediator 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 to the mediation knowingly and willingly agree to permit a broader report or statement. Where a dispute resolver is required by law to make declarations or findings or submit a report to a court or other legal authority, the process in which that dispute resolver is engaged is something other than mediation or a mediative process.
C. Limited 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, or the good faith decision to reveal confidential information in order to prevent a criminal act which the dispute resolver reasonably believes is likely to result in death, or substantial bodily harm to an individual. In situations where it appears likely that an exception to confidentiality may arise, and where in the discretion of the dispute resolver it is reasonable to do so under the circumstances, dispute resolvers should inform the parties of these potential exceptions to confidentiality.