Virginia ADR Joint Committee Has A Rich History (Part II)

By Lawrence H. Hoover, Jr.
Virginia ADR, Fall/Winter 2003

[Editor’s Note: In Part I of his history of the Joint Committee, published in our Summer 2002 newsletter, Larry Hoover described the formation of the Joint Committee and its activities in the late 1980s and early 1990s. Then, the Joint Committee had played a critical role in establishing several community mediation centers, in helping the develop the Dispute Resolution Proceedings Act and in helping to create the Department of Dispute Resolution Services in the Office Executive Secretary of the Virginia Supreme Court. The Joint Committee also played a key role in promoting mediation to the bench and bar, particularly through a series of CLE programs. In Part II, published below, Larry focuses on the Joint Committee’s involvement in several policy initiatives undertaken in the 1990s and on the Joint Committee’s recent restructuring.]

For many years, the Joint Committee has wrestled with the recurring and difficult question of whether the practice of mediation could be seen as the unauthorized practice of law (UPL). Some early opinions of the Ethics Committee of the Virginia State Bar addressing mediation had alerted the Joint Committee in the early 1990’s that conflict in this area was predictable. An ad hoc committee of the Joint Committee got permission from the Ethics Committee to comment on a proposed ethics opinion involving UPL. Thinking that it would be a good opportunity to deal with this thorny issue the Committee drafted a fairly comprehensive comment, hoping that it would bring some clarity to the tough issues the Ethics Committee was facing. But the timing was not right and this issue remained unresolved.

The Department of Dispute Resolution Services (DRS) and the Virginia State Bar convened a conference in 1997 to provide mediators with clarity on the unauthorized practice of law, but the conference unfortunately heightened mediator anxiety and exacerbated tensions between attorney and non-attorney mediators. In 1999 DRS got a grant and convened a committee to study this issue and members of the Joint Committee had another go at the issue. What eventually emerged were Guidelines on Mediation and the Unauthorized Practice of Law, published by DRS which attempted to make the difficult distinction between permissible legal information and impermissible legal advice and to authorize the drafting of mediated agreements while limiting the drafting service to that of a “scrivener.”

The outcome was paradoxical. On the one hand it was only by some inspired process work by several members of the Joint Committee, especially Torrence Harman, during the final session of the committee, that the Guidelines were adopted with the approval of the Chair of the VSB Ethics Committee and its counsel in a form that was not unduly restrictive. On the other hand, the Virginia Guidelines have been criticized by the some of the leadership of the American Bar Association Section on Dispute Resolution as being a harmful precedent for the growth and development of mediation. The DR Section’s resolution on this subject, adopted in February, 2002, avoids the legal information/legal advice dilemma by simply stating that mediation is not the practice of law and making the mediator responsible for informing the parties that the mediator does not provide legal representation. This is a good solution and the Virginia UPL Guidelines should be revisited.

The New Rules of Professional Conduct

A comprehensive review of the Code of Professional Responsibility began in 1993 and continued until the Supreme Court of Virginia approved the Virginia Rules of Professional Conduct in 1999. Throughout this process, members of the Joint Committee were involved in drafting, and negotiating additions to, a number of provisions relating to ADR and collaborative lawyering. Carl Hahn and Larry Hoover (also a member of the special committee reviewing the Code), co-chairs of the Ethics Committee of the Joint Committee, took the lead in this effort. The Virginia Rules include provisions defining the roles and responsibilities of lawyers acting as third party neutrals and interpretive comments to several rules relating to the lawyer/client relationship. These comments refer to a lawyer’s responsibility to advise the client about the ADR alternatives and legitimize the role of the lawyer as a collaborative problem-solver.

In recent years the focus of CLE programs has moved from introducing lawyers to ADR generally to offering more specific assistance to lawyers who are representing clients in mediation. This form of representation requires an adjustment from the classic advocacy role where there is a third party decision-maker. Now the focus is introducing strategies, skill sets and special ethics issues relevant to the lawyer as problem-solver in the mediation context. Members of the Joint Committee have taken the lead in this shift.

Legislative Activity

The Joint Committee, the Virginia Mediation Network and the Department of Dispute Resolution have continued to work together on legislative initiatives. These efforts resulted in the passage in 2002 of the Virginia Administrative Dispute Resolution Act (VADRA, Va. Code Section 2.2-4115 et seq.) and a number of clarifying changes to the referral statute (Va. Code Section 8.01-576.4 et seq.) and revisions to the general mediation statute (Va. Code Section 8.01-581.22 et seq.) to make it consistent with the referral statute.

The new VADRA authorizes public bodies to use dispute resolution proceedings and requires each state agency to adopt policies for use of these proceedings within the agency, its programs and operations. VADRA also establishes the Interagency Dispute Resolution Advisory Council, made up of dispute resolution coordinators designated by the head of each state agency and three persons appointed by the Governor who may be selected from nominations submitted by the Joint Committee and the Virginia Mediation Network. The Council is responsible for training and educational programs and materials and reports and makes recommendations for legislative changes to the Governor and the General Assembly.

Continuing the tradition of collaborating with and supporting the work of the community mediation centers in Virginia the Joint Committee and the Institute of Environmental Negotiation have supported the creation of a more formal coalition of community centers. The Joint Committee has also continued its support of mediation in the public schools through the recent sponsorship of peer mediation programs in the Richmond school system.

Restructuring the Committee

In 2002, the Joint Committee was re-structured. The newly organized Joint Committee had been in the making for several years and owes much to the leadership of Mark Rubin. The impetus for change came from the need for a structure that allows for open-ended membership by Virginia lawyers. By the fall of 2003, 409 lawyers had joined the newly-expanded Joint Committee. In addition to increased membership of the committee, the new structure provides for a governing council of sixteen members elected to four year staggered terms by the membership, which also elects officers annually. It provides for membership fees, which will support the administration of the program by the Virginia Bar Association.

The Joint Committee has a rich history and its members have made major contributions to the development of mediation and dispute resolution in the state and beyond. The restructuring of the committee is timely. It will encourage broader participation and influence by lawyers increasingly interested in collaborative, problem-solving processes that promote the importance of constructive and satisfying participation by clients in the resolution of their disputes.

Larry Hoover is of counsel at Hoover, Penrod, Davenport & Crist, a Harrisonburg law firm. He teaches seminars in Negotiation and Mediation at Washington and Lee School of Law and is a member of The McCammon Group, a Richmond based provider of mediation, arbitration, training and consulting services. He was chair of the Joint Committee from 1989 to 1992.