Guidelines for Neutrals
Adopted by the LACBA Board of Trustees on June 16, 1999
A. In recent years, courts and litigants have turned with increasing frequency to private parties for assistance in dispute resolution. These private parties, commonly known as "neutrals," serve in many capacities, including as referees appointed by the court either with or without the parties' consent; as "private judges" selected by the parties and appointed by the court under Code of Civil Procedure section 638; and as arbitrators or mediators either appointed by the court or privately selected by the parties.
B. The many different roles that neutrals serve and the increasing variety of persons who act as and utilize neutrals has created a need to insure that neutral-supervised proceedings retain both the substance and appearance of fundamental fairness and impartiality. The essential premise of these Guidelines is that participants should have confidence that the neutral is truly impartial-or, if not, that any information concerning his or her impartiality has been disclosed so that the participant can make an informed decision as to whether to retain or consent to the particular neutral.
C.Because these Guidelines are designed to provide guidance to neutrals acting in any capacity, they are necessarily broad and conceptual. They are not intended to supplant any existing laws or rules that apply to particular situations in which neutrals are involved.
A. "Neutral": Any person, other than a sitting judge, who performs adjudicative, mediation or other dispute resolution services either by court appointment or through retention by the parties; provided, however, that the definition does not include persons who serve these roles in a non-neutral capacity, such as party-appointed arbitrators.
B. "Appointment": The selection of a neutral, whether by a court, a private organization, or the parties, and whether voluntary or involuntary.
C. "Parties": The persons or entities whose dispute the neutral is attempting to resolve, including their lawyers or other representatives where the context so indicates.
D. "Identified witness": A person expected to testify or otherwise participate in the proceeding whose identity has been made known to the neutral.
A. A neutral should be physically and mentally capable of discharging the function for which he or she is appointed. A neutral who anticipates or learns that any physical or mental impairment may impede his or her ability to resolve the parties' dispute in a timely and effective manner should disclose that information to the parties promptly.
B. A neutral should have sufficient education and experience to be able to understand or learn about the subject matter of the dispute for which he or she is appointed.
C. A neutral should perform his or her services expeditiously and should not accept an appointment without disclosing any limitations on his or her ability to do so.
Maintaining the Substance and Appearance of Neutrality
A. A neutral ordinarily should not serve in a matter as to which he or she cannot be entirely impartial. However, since neutrals are frequently selected by the parties themselves and their reasons for a particular selection may overcome concerns about impartiality, the primary emphasis in these guidelines is on disclosure. The guiding principle is that a party should be aware of anything that could reasonably affect his or her decision whether to accept a particular neutral.
B. Certain matters are so inimical to impartiality that their existence should lead a neutral to decline to serve, unless (a) all parties are represented by counsel and (b) all parties consent following full written disclosure of the facts. These include, but are not limited to, the following:
- The neutral or anyone in his or her immediate family has personal knowledge of disputed evidentiary facts concerning the proceeding;
- The neutral represented any party in the proceeding in connection with any issue involved in the proceeding;
- The neutral or any member of his or her immediate family (a) has a direct and substantial financial interest in the outcome of the proceeding (including substantial shareholdings in any corporate party) or (b) is an officer, director, or trustee of a party;
- A lawyer, spouse of a lawyer or a party (a) is the spouse, former spouse, child, sibling, or parent of the neutral or the neutral's spouse or (b) is associated in the private practice of law with the neutral;
- Any other matter that, if known, would cause any reasonable party to refuse to accept the neutral or that would cause a party to entertain a doubt that the neutral would be able to be impartial.
- A neutral should maintain records reflecting, for each matter in which he or she serves, the identities of the parties, their counsel, any insurance carriers (to the extent known), and any individuals whose impact on the proceeding was such that the neutral reasonably feels he or she might be influenced by that person's participation in a future proceeding.
- A neutral should, before accepting an assignment, make a full and complete disclosure to the parties (and, if appointed by a court, to that court) of any fact that could cause a reasonable person to question the neutral's impartiality. Neutrals should err on the side of greater disclosure, because it is better for issues be raised at the outset when the parties are free to choose between rejecting the neutral and proceeding with full knowledge of the disclosures. Neutrals should approach disclosure with the confidence that complete disclosure not only prevents later questioning of the neutral's impartiality, but also protects the integrity of the system that increasingly relies on the services of neutrals.
- The level of disclosure should be reasonably related to the circumstances of the neutral's appointment and to the availability of information to the neutral. For example, a volunteer neutral serving on short notice who learns the participants' identities at the beginning of the proceeding should only be expected to disclose matters actually known to the him or her at that time. In contrast, a neutral who has advance knowledge of the identities of the participants should consult his or her records.
- To avoid any later question about whether the neutral made a particular disclosure, neutrals should make a written disclosure of;
- Any direct or indirect financial interest in the outcome of the proceeding;
- Any existing or past financial, business or professional relationship with the parties, counsel, or identified witnesses, including past service as a neutral for any party or counsel;
- Any existing or past family or social relationship with the parties, counsel, or identified witnesses;
- Any knowledge about the dispute;
- The receipt within the preceding five years of any payments, services, gifts or other benefit from a party, counsel, or identified witness other than (i) a payment for past services as a neutral in matters disclosed under paragraph 2 and (ii) matters of so little benefit to the neutral that knowledge of it would not cause any reasonable person to question the neutral's impartiality;
- If formally appointed by a judge or to the neutral's knowledge referred by a judge, the number of prior appointments or referrals by that judge; g. Any other matter that, if known, would cause a reasonable person to question the neutral's impartiality.
5. A neutral should disclose any known relationships or interests involving any party or counsel and the neutral's family, current employees, partners, or close business associates. A neutral should make a reasonable effort to be informed about such relationships.
6.A person who accepts employment as a neutral should promptly disclose any interests or relationships that he or she recalls after the initial disclosure or that arise or are discovered during the course of the proceedings.
7. A neutral should ask the parties and their counsel to provide sufficient information to enable the neutral to determine the need for disclosure. Having made such a request, the neutral is entitled to assume that the parties have made full disclosure of all relevant information reasonably available to them.
Solicitation of Business
Because neutrals earn some or all of their living by payment for their services as neutrals, it is essential that they have the ability to encourage courts and parties to use their services. On the other hand, impartiality requires that there be no relationship between neutrals and any other person-whether a sitting judge, a lawyer, or a party-that might suggest that the person has any ability to influence the neutral's conduct by directing business to the neutral.
The neutral should charge a reasonable fee commensurate with his or her background and skills. The neutral should disclose all fees and other anticipated charges before accepting an assignment. Upon reasonable request of a party, the neutral should provide an estimate of the fees that are likely to be incurred in the proceeding.
Except in the case of retention in a subsequent matter by a party to a proceeding (which should be disclosed in both matters), throughout the time of appointment and for a period of two years after his or her last activity in a proceeding, the neutral should accept no payment (other than as charged for the services as a neutral), service, gift, or other benefit from any party or counsel who have appeared in matters before the neutral, except for matters of so little benefit to the neutral that knowledge of it would not cause any reasonable person to question the neutral's impartiality. The neutral should strive to prevent the acceptance of any such benefits by any close family member or member of the neutral's household.
Contact with Court
When the neutral has been appointed in a matter pending in the court, his or her ex parte communications concerning the matter with the judicial officer presiding over the matter should be limited to procedural questions. All other communications concerning the matter with the judicial officer should be either written submissions provided to all counsel or joint communications that include all counsel.
Conduct of Proceeding
A. Decision-makers. A neutral who as a part of the appointment will make decisions or make recommendations to a court affecting the rights of a party should:
- Conduct the proceedings in a fair and evenhanded manner;
- Display no bias or prejudice toward any party, counsel, or witness;
- Provide a full opportunity to the parties to be heard, granting continuances and rescheduling the matter if reasonably necessary;
- Display patience and courtesy to all parties, counsel and witnesses and encourage parties, counsel and witnesses to do the same;
- Take all steps necessary to become fully informed of both the facts and law that will form the basis of the decision;
- Not engage in any ex parte communication concerning the matter with any party unless all parties otherwise agree.
- The mediation process necessarily varies depending on the particular methodology of the mediator, the nature of the case, the terms of the appointment and the personalities of the parties and their counsel. These guidelines are not intended to limit or shape the mediation process.
- The neutral should ensure that the proceedings are fair, evenhanded and not clouded by bias, prejudice, or favoritism toward any party or counsel.
- The neutral should strive to give all parties an opportunity to present their positions and should seek creative resolution of the dispute.
- The neutral should maintain the confidentiality of the mediation process. Information given to the mediator in private session should not be disclosed to any other party without express consent. Information concerning the mediation should not be given to any third party except as may be required by law.
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