December 2000: Volume 8, Issue 4
Revisions to the Standards of Ethics Approved by the Judicial Council
On October 23, 2000, the Judicial Council approved revisions to the Standards of Ethics for certified mediators. The revisions go into effect January 1, 2001 and address what have affectionately come to be known as the "four legals". The four legals are found in Section D (2)(a) of the Standards of Ethics and require that, prior to the commencement of a mediation, the mediator shall inform the parties in writing of the following:
- The mediator does not provide legal advice.
- Any mediated agreement will affect the legal rights of the parties.
- Each party to the mediation has the opportunity to consult with independent legal counsel at any time and is encouraged to do so.
- Each party should have any draft agreement reviewed by independent counsel prior to signing the agreement or should waive his opportunity to do so.
The language found in section D (2)(a) mirrors the language in the Section 8.01- 576.12 of the Code of Virginia. Section 8.01-576.12 describes the process of vacating orders and agreements reached in mediation. One reason a mediated agreement may be vacated is due to mediator misconduct. "Misconduct" includes failure of the mediator to provide in writing at the commencement of the mediation process the four legals listed above. Given the significant statutory impact not providing the four legals can have on mediated agreements, the requirement was included in the 1997 revisions to the Standards of Ethics. The scope of the Standards of Ethics includes court-referred and privately-referred mediation conducted by certified mediators.
Recently, concerns have been expressed by some mediation practitioners that, while the statutory requirement to provide the four legals in court-referred cases is appropriate given that legal issues are being resolved, parties generally intend to enter a binding agreement and legal advice is essential to making informed decisions; the four legals are less appropriate in many privately-referred cases. For example, in the contexts of community mediation, school mediation, or parent-child mediation, providing parties with the four legals makes the mediation process more formal. In addition, mediators have found new opportunities for mediating cases in the federal and even international arena. These mediation programs have their own procedures and forms. Most do not include the language of the four legals in the Agreement to Mediate Forms and some have refused to permit certified mediators to amend forms to provide parties with the four legals in writing. As a result, many certified mediators have experienced an ethical dilemma regarding whether to comply with the Standards of Ethics or forego new mediation opportunities.
The Office of the Executive Secretary held numerous meetings with its Ethics Committee, Legislative Committee, and Advisory Council to discuss the concerns expressed by mediation practitioners. Jeanette Twomey was invited to participate in some meetings as a representative of the mediation community seeking a revision of the Standards. After a great deal of thoughtful discussion and consideration, the following revisions were made to the Standards:
1) In all court-referred cases, certified mediators must continue to provide the four legals in writing to the parties at the beginning of mediation.
2) In all privately-referred cases, certified mediators must inform the parties, orally or in writing, of the substance of the four legals.
With this revision, more flexibility has been provided to mediators in privately-referred cases. Mediators may choose to provide the four legals orally or in writing. This is useful where mediation programs preclude mediators from adding the four legals to the pre-printed Agreement to Mediate Forms and where the parties can better appreciate the meaning of the four legals when stated orally. In addition, the revisions allow mediators to provide parties in private cases with the substance of the four legals as opposed to the four legals verbatim. This, too, allows for more flexibility for mediators where parties perceive their dispute to be more relational as opposed to legal and can appreciate the meaning of the four legals if restated in a less complex manner by the mediator.
A new comment has been added to Section D (2)(a) of the Standards explaining the following: The primary role of the mediator is to facilitate the voluntary resolution of the dispute. In order to ensure that parties are making informed decisions, mediators should make the parties aware of the importance of consulting other professionals. Particularly, where legal rights are involved or the parties' expectation is to enter into a binding and enforceable agreement, clear notification of the information in the four legals is essential. A mediator can most effectively verify that he or she has informed the parties of the items in the four legals if these items are put in writing.The revised Standards will be mailed to all certified mediators in December. Please feel free to contact the Department of Dispute Resolution Services if you have any questions or need further information.
Resolutions is published quarterly by the Department of Dispute Resolution Services Office of the Executive Secretary Supreme Court of Virginia.
To request copies of the newsletter or to be placed on the mailing list, you may contact: Department of Dispute Resolution Services 100 North Ninth Street, Third Floor Richmond, Virginia 23219
Telephone: (804) 786-6455
Editors: Geetha Ravindra
Contributions of articles or information are always welcome.
This page last modified: July 23, 2002