A Connecticut Mediator in a Kangaroo Court?: Successfully Communicating the 'Authorized Practice of Mediation' Paradigm to 'Unauthorized Practice of Law' Disciplinary Bodies
Appalachian School of Law
Texas Law Review, Vol. 49, p. 1047, 2008
This article analyzes the disciplinary proceeding brought against Dr. Resa Fremed and the statutes and precedent on which the Connecticut Statewide Grievance Committee relied in finding that she had engaged in the unauthorized practice of law (UPL). The analysis is highly critical of the decision. One section discusses the “law practice” paradigm as expressed in the UPL context. The article also looks at the application of UPL doctrine in the context of mediation, including the state ethics advisory and grievance opinions relating to mediation. Another section describes the “authorized practice of mediation” paradigm. This section considers definitions of mediation, the role of the mediator, the constraints imposed by mediator ethics codes on mediator behavior, and the lack of evidence of any harm to the public from services provided by mediators. A later section suggests that the UPL guidelines for mediators developed in Colorado, Georgia, North Carolina, and Virginia attempt to balance two competing policies while the mediation field establishes the “parallel” paradigm of the “authorized practice of mediation.” It summarizes the advice offered by these guidelines about the distinction between legal advice and legal information. It also summarizes the advice they give on drafting memorandum of understanding, settlement agreements, and court forms.
The article also suggests some precautions individual mediators can take to avoid UPL charges. The final section describes the challenge facing the mediation field in “pushing back” against the “law practice” paradigm. It urges the field to lobby for changes in the definitions of the “practice of law” found in statutes and court rules. They should expressly exclude mediation. The field should aggressively use UPL proceedings involving nonlawyer-mediators as a way to establish favorable court precedent. It also urges state courts to build the infrastructures needed to support mediation and to protect the public through codes of ethics, ethics advisory opinions, and grievance systems. It concludes that to the extent certain actions of mediators come close to the boundaries of law practice, UPL disciplinary bodies should first scrutinize those actions in light of the core values of mediation and generally accepted ethical constraints on mediators. They should worry first about consumer protection and not turf protection. The author hopes that this article will serve as the template for any brief a lawyer will need to file in the future on behalf of a nonlawyer-mediator accused of engaging in the unauthorized practice of law.
Keywords: ethics, mediator, mediation, unauthorized practice of law
Date posted: May 6, 2011
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