Editor’s note: The state ADR Ethics Board—which, to be clear, is not an MSBA-affiliated body—has asked for our help in publicizing a statement they have released concerning the practice of some neutrals of limiting a party’s input on disputes when the party’s financial obligations to the neutral are delinquent. That statement follows:
“As members of the state Alternative Dispute Resolution (ADR) Ethics Board, we have occasion to review ADR Neutrals’ engagement agreements and practices from time to time. One practice which the Board has observed in several recent instances has given us cause for concern. It arises in a situation where an ADR Neutral who, when not paid by one of the parties in a dispute, continues on in his or her role but with a willingness to receive input only from the party who is current on his or her financial obligations. Most often, this appears to occur in the context of an ongoing family court case with the ADR Neutral functioning as a parenting consultant or in a similar role.
“ADR Neutrals have every right to expect payment for their services. In fact, these services are vital to many families; neutrals assist them in resolving disputes, or even averting disputes altogether. But the parties have other reasonable expectations as well, among which are that when an ADR Neutral is engaged, he or she will remain neutral, and will make decisions only after reasonable input from both sides. Rule 114 (not to mention notions of due process and fundamental fairness) requires as much, and faith in the process will collapse under any other scenario.
“The Board recommends that neutrals engaged in ADR practice review their engagement letters to screen for any provisions which might call for a party’s right to provide input to be cut off for financial reasons. If so, we would urge you to rewrite your agreements and modify your practices accordingly. The following are some links to some engagement agreement templates with sample language: