Attorney Joe Manuel can talk at length, and with great passion, about alternative dispute resolution. And every word seems calculated to inform, to clear away misconceptions, and to promote an ethically strict approach to mediation and arbitration. One gets the feeling while listening to him that he practices what he preaches.
Manuel has written and taught so extensively on the topic, he’s known as the “ADR Professor.” He’s even created a series of online courses bleary-eyed lawyers have taken as late as 11:30 p.m. on New Year’s Eve in an effort to complete their CLE requirements on time. He’s recommending his Chattanooga colleagues take his seminar titled “Ethics in Mediation” on November 17, and leave their calendars open for a proper year-end celebration.
Through a case study of “one of the most significant developments since (the State of Tennessee) started mediation,” Manuel will review the basic rules for conducting a mediation under the auspices of Supreme Court Rule 31, Appendix A and the Rules of Professional Conduct 2.4. The seminar is scheduled to take place from 8:30 to 10:45 a.m. at the Mountain City Club on Chestnut Street. Breakfast and registration will begin at 8 a.m. Those who attend the seminar will earn two hours of dual CLE credit as well as two mediation ethics hours. The session will cost Chattanooga Bar Association members $7, non-members $140 and legal support staff $25.
Manuel will use a recent case in which the ADR Commission admonished a mediator for giving advice to a client as a springboard for his instruction. He says the mediator made a serious error when she provided the counsel. “The mediator was accused of giving advice in an ex parte email. The party acted on it, and then bad things happened to the other party. The other party learned about what happened, filed a complaint with the ADR Commission and then sued the mediator. Things that were confidential were attached to the complaint, so they’re now a matter of public record.”
Manuel says the rules make it clear that mediators are prohibited from giving legal advice to the parties to a mediation – or acting as a marriage counselor or a therapist. Even though the mediator’s intentions were good, Manuel says, “The road to litigation is paved with good intentions.” The case is still pending. During his seminar, Manuel will advise mediators to always be on their guard, as it’s easy to slip up, especially when they’re accustomed to acting in a certain capacity. For instance, lawyers who are used to providing legal counsel could easily say something heedless the ADR Commission could interpret as legal advice. He’s even had to watch his own tongue.
While Manuel was mediating a couple that was in the process of divorcing, the wife called him and asked for advice regarding her soon-to-be ex-husband’s refusal to pay their health insurance premium. The two parties had reached an agreement, papers had been drawn up, and the husband was leaving the country in two days, but in the eyes of the law, they were still together. The wife asked Manuel if they were still married. “If I’d told her they were still married, that would not have been incorrect information. But I’m prohibited from giving legal advice, so I told her to call her lawyer,” Manuel says. The wife told Manuel her lawyer wasn’t available and pressed him for his opinion. “It was hard, but I told her I couldn’t help her. I did call her lawyer’s office and let them know about her concern, but that was it. I didn’t take sides, and I didn’t say whether she was right or wrong. Technically, I would’ve been in violation if I’d done that,” Manual says.
Manuel says other ethical issues can crop up while acting as a mediator. He will cover them during his seminar if time allows. “Specific ethical rules and guidelines apply to a large percentage of Rule 31 mediations. For example, if you meet privately with one of the parties, you can’t share that information with the other side unless you’re authorized to do so. “The manner in which you communicate with the parties is also important. Sometimes, people who don’t have lawyers will hire me, so if I communicate with them, I have both of their email addresses, and I send both of them the same message. I’m not going to get caught up in ex parte communications. It makes one side suspicious and uneasy.
“Also, one party might be more educated than the other and have a higher earning capacity. There’s a disparity of bargaining power. It’s your obligation to deal with those issues and bring about a fair result.” Manuel will explore several other advanced mediation topics as well, including key items to include in an agreement, avoiding multiple mediations, mediation versus counseling, and the mediator’s report to the court.
A certified trial specialist since 1995, Manual combines an active trial practice with his ADR activities. He recently created an application for iPhone, iPad and iTouch that allows users to search Rule 31, Appendix A and RPC 2.4 by topic. Available on the Apple App Store for a nominal fee, it’s titled “Tennessee ADR Finder.” Manuel also is the author of the “Tennessee ADR Handbook,” and created the “Tennessee Mediation Pocket Guide.” In addition, Manuel has been a Tennessee Supreme Court Rule 31 listed attorney since 1997, and participates in various ADR programs of the U.S. District Courts in Tennessee. He’s also a member of various arbitration panels, the American Arbitration Association and the National Association of Securities Dealers.
To register for the seminar online using Visa or MasterCard, visit the Chattanooga Bar Association Web site at www.chattbar.org. The Bar has scheduled several CLE seminars for this fall. The Hamilton County Herald is a sponsor of each one.