X legally owns a parcel of land wherein Y alleges ownership

over the same property. Persuaded by the mediator, X and Y agreed

to settle the dispute by dividing equally the property between them.
Was the mediator able to resolve the issue ethically, i.e.,
successfully?

What is particularly tricky in the ADR area is ascertaining

exactly what is protected. Therefore, it is very important to examine
the qualifications of the person to handle mediation to ensure integrity
of the proceeding.

Variety of factors needs to be considered when selecting a

mediator to handle a dispute. These include not only the training and
experience of the mediator, but also his or her background, area of
specialty, perspectives, biases and unique approach to mediation.
Differences in these factors can certainly make a difference in the
success of the mediation process, so a careful decision should be
made.

No matter what training, background, perspectives or style a

mediator has, though, there are certain things that mediators must do
in the mediation process. First of all, mediators are required to inform
the parties of several matters prior to beginning the mediation. This
includes the cost of mediation, the process of mediation, as well as
the benefit of obtaining independent legal advice.

Mediators are also required to inform the parties of the

mediators role, that the mediator does not represent either party and
that he or she is required to act as a neutral in the dispute. Any
relationships or interests the mediator has which could affect the
neutrality of the mediation must also be reviewed. This includes any
biases or conflicts of interest. All of this information must be provided
in writing.

Page 1 of 3
 Mediators are also required to ensure that all communications
and documents in the process are kept confidential. This
confidentiality must be maintained before, during and after the
mediation itself. There are certain exceptions, including
communications or conduct in criminal matters which involve the
threat of bodily injury, felonious damage to real or personal property,
or direct bodily injury to a person. Documents that exist or existed
independent of the mediation are also not considered privileged.

An experienced mediator will be able to not only fulfill his or her

legal duties to clients, but provide effective facilitation of the
mediation process.

One aspect of the control partys exercise over arbitration is

that they are able to select the arbitrator who hears their case. This
allows parties to pick a mediator who is well-suited to make a
decision in their case. One important factor to consider when
selecting an arbitrator is expertise over the subject matter of the
arbitration. Familiarity with the issues in dispute gives the arbitrator
additional insight into matter.

Neutrality is an important aspect of the process, and it is

important to select an arbitrator who will remain neutral. One way to
ensure neutrality is to utilize a panel of arbitrators. This can be
especially useful in cases which are particularly complex or where
there is a significant amount in dispute.

Making the best use of arbitration and mediation requires

making a wise selection regarding arbitrators and mediators.

One of the arenas that has sparked the greatest controversy

and need for regulation has been that of conflicts of interest. While
the lawyer rules of conflicts of interest are intended to protect the

Page 2 of 3
interests of loyalty and confidentiality, conflicts rules may have to
serve different purposes in ADR practices.

To the extent that proponents of ADR were attracted to it

because of its promise of flexibility, adaptability, and creativity, we
now see the need for ethics, standards of practice and rules as
potentially limiting and containing the promise of alternatives to rigid
adversarial modes of dispute resolution. It is almost as if we thought
that anyone who would engage in ADR must of necessity be a moral,
good, creative, and, of course, ethical person. That we are here today
is deeply ironic and yet, also necessary, as "appropriate" dispute
resolution struggles to define itself and insure its legitimacy against a
variety of theoretical and practical challenges.

Page 3 of 3