Hon. Robert E. Senechalle, Jr., (Ret.), senior mediator and arbitrator at ADR Systems, recently presented alongside Richard Gleason, Esq., litigation counsel for the Illinois Attorney Registration & Disciplinary Commission, on the topics of ethics in mediation for the Chicago Bar Association’s Construction & Mechanics Lien Subcommittee.
“Mediation happens behind closed doors. Most communication in mediation is privileged against disclosure, admissibility and discovery and is confidential to the extent agreed to by the parties,” said Judge Senechalle. 710 ILCS 35/4, 35/8. “As such, ethical conduct in mediation is vital to the integrity of the process.”
Various rules and ethical guidelines exist to govern and guide behavior during mediation, both indirectly and directly. The Illinois Rules of Professional Conduct regulate all manner of conduct by attorneys in the practice of law, but its rules on lawyers acting as third-party neutrals (Rule 2.4) and communication (Rule 1.4) are especially relevant to alternative dispute resolution and the negotiation of settlement agreements. The American Bar Association (ABA) Section Dispute Resolution’s Model Standards of Conduct for Mediators enumerate duties of third-party neutrals enlisted to mediate disputes, including the duty to avoid conflicts of interest, maintain confidentiality, be impartial, and promote and maintain the quality of the process, among others. Additionally, the ABA Section on Litigation’s Ethical Guidelines for Settlement Negotiations are “intended to be a practical, user-friendly guide for lawyers who seek advice on ethical issues arising in settlement negotiations” as it relates to issues between attorneys and their clients and issues between attorneys and opposing counsel.
“These rules, standards and guidelines are not meant to limit, constrain, or complicate an attorney or neutral’s conduct in mediation, though the volume of content within these documents may give that impression,” said Judge Senechalle. “Rest assured that if attorneys and neutrals are acting in good faith, striving toward fair dealing, communicating effectively, and respecting the process, we are meeting the expectations that these documents set forth.”
Hon. Robert E. Senechalle, Jr., (Ret) brings 50 years of legal experience to his role as senior mediator and arbitrator. On the bench he presided over a variety of personal injury lawsuits, including medical malpractice, construction injury and nursing home negligence cases. Judge Senechalle also heard numerous commercial cases including breach of contract and mortgage foreclosure matters. He values knowledge and preparedness as a tool to help parties come to a settlement that is satisfactory to all.
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