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Clerk of the Appellate Courts
Kansas Judicial Center
301 SW 10th Avenue, Room 374
Topeka Kansas 66612-1507
Telephone:  785.296.3229
Fax:  785.296.1028
Email: appellateclerk@kscourts.org


Rules Adopted by the Supreme Court

Court Rules Relating to Mediation

Rule 901
Court Rules Relating to Mediation

Mediation

(a) Mediation under this Rule is the process by which a neutral mediator assists the parties in reaching a mutually acceptable agreement as to issues of a dispute. The role of the mediator is to aid the parties in identifying the issues, reducing misunderstandings, clarifying priorities, exploring areas of compromise, and finding points of agreement. An agreement reached by the parties is to be based on the decisions of the parties and not the decisions of the mediator.
(b) An attorney may act as a mediator for multiple parties in a dispute if:
(1) The attorney-mediator clearly informs the parties of the attorney-mediator's role as a mediator including the confidentiality of the process pursuant to K.S.A. 60-452a and they consent, in writing, to this arrangement;
(2) The attorney-mediator defines the legal issues to the parties only in the presence of all parties in the matter;
(3) The attorney-mediator advises and encourages the parties to seek independent legal advice before the parties execute any settlement agreement drafted by the attorney-mediator;
(4) The attorney-mediator has not represented one of the parties beforehand in a matter that is the subject of the mediation; and
(5) The attorney-mediator does not act on behalf of any party in court nor represent one party against the other in any related matter. However, the attorney-mediator may act as an attorney for a party after the completion of the mediation process if the subsequent representation is clearly distinct from the mediated issues.
(c) An attorney-mediator shall withdraw as mediator if any of the parties so requests, or if any of the conditions stated in paragraph (b) are no longer satisfied. Upon withdrawal, the attorney-mediator shall not continue to act, in any capacity, on behalf of any of the parties in the matter that was the subject of the mediation.
(d) An attorney acting as a mediator is not the legal representative of the parties and there is no attorney-client relationship between the parties and the attorney-mediator.
(e) Nothing in this Rule restricts the activity of:
(1) attorneys representing clients in the negotiation process, or
(2) intermediaries, as defined by EC 5-20 of the Code of Professional Responsibility.
(f) In addition to the requirements of this Rule, an attorney involved in mediation of family disputes must comply with the Kansas Standards of Practice for Lawyer Mediators in Family Disputes, an appendix hereto.

JUDICIAL COUNCIL COMMENT:


The Judicial Council added section (a) to Supreme Court Rule 901 because the members believed a definition of mediation was necessary to distinguish mediation from other methods of dispute resolution, such as negotiation, arbitration and conciliation. This definition is taken from K.S.A. 23-601, which provides for court-ordered mediation in child custody cases.

Sections (b) and (c) are patterned after the Oregon disciplinary rule on mediation, which was recently adopted by the Oregon Supreme Court. These sections set out the basic obligations of an attorney engaging in mediation.


Section (d) makes it clear that an attorney doing mediation is not acting as an attorney in a representative capacity and no attorney-client relationship exists. This section eliminates the confusion in earlier ethical decisions, which erroneously decided that attorneys could not engage in mediation because the attorney-mediator was representing both parties. (See Silberman, Professional Responsibility Problems of Divorce Mediation, 16 Fam. L. Q. 107 [1982].)

The Judicial Council added section (e) because the members were concerned that the new rule on mediation may be perceived as limiting the negotiation activities of attorneys representing clients in adversarial activities. Negotiating on behalf of a client is distinct from mediating a dispute, because in mediation the mediator is not acting on behalf of either party and the parties negotiate for themselves. Also, the rule does not apply to the role of a mediator or intermediary as defined by the Code of Professional Conduct (EC 5-20) or the proposed Kansas Rules of Professional Conduct (Rule 2.2) because these codes envision the mediator or intermediary acting as an attorney, representing clients. Again, in mediation, as defined by this rule, the mediator is not acting as a representative and there is no attorney-client relationship.

Under section (f), attorneys who mediate family disputes must also comply with the more detailed Standards of Practice for Lawyer Mediators in Family Disputes. The Judicial Council added this section to clarify the interrelationship between the mediation rule and these Kansas Standards.



[History: New rule effective May 6, 1987.]


See also: Rule 1001 - Electronic and Photographic Media Coverage of Judicial Proceedings