Standards for arbitrators could be more strict than those for mediators in certain circumstances. The effect of hybrid neutrals. Although there are occasions where neutrals can serve in a dual capacity, these situations can and should be dealt with by using the stricter applicable standards. This provision needs substantial expansion and increased specificity. Separating the rules for arbitrators and mediators will be a helpful threshold step.
Mediators working with unrepresented parties present perhaps the most difficult situation.
The issues are first, whether the mediator should provide information about the law as applied to the facts presented by the parties, and second, whether this would constitute the practice of law. The mediator essentially has a choice between not giving legal information and allowing unrepresented parties to resolve their matter in ignorance of basic legal issues, or to provide the information at the risk of giving legal advice and thereby establishing an attorney-client relationship, albeit one with limited scope. Obviously, careful drafting and intelligent commentary would be necessary to make this rather fine distinction sufficiently clear. Equally important is drafting language carefully evaluating the scope of any limited representation. In La Jolla, Commissioner Pera raised the issue of what happens when one or more parties are poorly represented.