In this Article, I explore the roles of lawyers in alternative dispute resolution ("ADR"), including traditional roles in arbitration and "new" roles in mediation and facilitation. I also discuss how conventional ethics rules for lawyers fail to provide guidance and "best practices" for lawyers who serve in these new roles. State legislatures and professional associations, such as the American Arbitration Association ("AAA"), the Center for Public Resources Institute for Dispute Resolution ("CPR"), and the Association of Conflict Resolution, have adopted ethical codes for mediators and arbitrators. Select professional associations are also developing "best practice" guides for the provision of ADR services; however, the lack of clarity in the Model Rules is a serious problem. The failure of the Model Rules to recognize the role of lawyers in "peacemaking," dispute prevention or resolution, and legal problem solving marks an absence in what is publicly recognized as among the most important roles a lawyer performs - that of a "constructive lawyer." Furthermore, the Model Rules misrepresent the legal profession by assuming that representing clients in adversarial matters is the only role lawyers fulfill. Such an assumption fails to give adequate guidance to a lawyer who fulfills a broader, and perhaps, more significant role than that of a "hired gun."
70 Tenn. L. Rev. 63-119 (2002)
Scholarly Commons Citation
Menkel-Meadow, Carrie, "The Lawyer As Consensus Builder: Ethics For a New Practice" (2002). Georgetown Law Faculty Publications and Other Works. 173.