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NASW Law Note: Social Workers and Alternative Dispute Resolution
NASW General Counsel, NASW Legal Defense Fund
ISBN: 978-0-87101-452-8. 2014. Item #4528. 50 pages.
ISBN: 978-0-87101-452-8. 2014. Item #4528. 50 pages.
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Social workers have a responsibility to manage conflict in a productive manner. Daily, social workers are involved with conflict resolution, whether advocating for clients, delivering services to clients, resolving conflicts in employment settings, or dealing with conflict within organizations.
In courts, social workers serve as fact witnesses, expert witnesses, or parties to lawsuits. Litigation can be costly and time consuming, and the strained relations associated with litigation leave social workers and others seeking other ways to resolve disputes.
Alternative dispute resolution (ADR) is a method of resolving disputes without litigation. The purpose of ADR is to allow parties to a dispute to settle their differences by discussion and agreement, permitting them to actively participate in and have control over the process and the solution.
This law note describes three methods of voluntary ADR – negotiation, arbitration, and mediation – and discusses the uses for these methods in the social work profession. It also provides answers to the following questions: In what areas do social workers practice as mediators What are the ethical issues for social workers as mediators How are ADR agreements enforced.
The NASW General Counsel Law Note series provides information to social workers about legal topics of concern to the social work profession. The Law Notes are developed with the support and financial assistance of the NASW Legal Defense Fund (LDF). Contents vary by title, but generally include legal information, civil procedure, contracts, legal methods, and glossaries. Checklists, timetables, case law, and other resources help social workers understand and exercise their legal rights and responsibilities as well as the rights and responsibilities of their clients.
In courts, social workers serve as fact witnesses, expert witnesses, or parties to lawsuits. Litigation can be costly and time consuming, and the strained relations associated with litigation leave social workers and others seeking other ways to resolve disputes.
Alternative dispute resolution (ADR) is a method of resolving disputes without litigation. The purpose of ADR is to allow parties to a dispute to settle their differences by discussion and agreement, permitting them to actively participate in and have control over the process and the solution.
This law note describes three methods of voluntary ADR – negotiation, arbitration, and mediation – and discusses the uses for these methods in the social work profession. It also provides answers to the following questions: In what areas do social workers practice as mediators What are the ethical issues for social workers as mediators How are ADR agreements enforced.
The NASW General Counsel Law Note series provides information to social workers about legal topics of concern to the social work profession. The Law Notes are developed with the support and financial assistance of the NASW Legal Defense Fund (LDF). Contents vary by title, but generally include legal information, civil procedure, contracts, legal methods, and glossaries. Checklists, timetables, case law, and other resources help social workers understand and exercise their legal rights and responsibilities as well as the rights and responsibilities of their clients.
Introduction
ADR and What It Encompasses
Negotiation
Arbitration
Mediation
Becoming a Mediator
Areas in Which Social Workers Practice as Mediators
Collaborative Divorce
Ethical Issues for Social Workers as Mediators
ADR and the NASW Ethics and Professional Review Process
Enforcement of ADR Agreements
Conclusion
Endnotes
Appendix A: The NASW Standards of Practice for Social Work Mediators
Appendix B: Selected Excerpts from NASW Procedures for Professional Review
ADR and What It Encompasses
Negotiation
Arbitration
Mediation
Becoming a Mediator
Areas in Which Social Workers Practice as Mediators
Collaborative Divorce
Ethical Issues for Social Workers as Mediators
ADR and the NASW Ethics and Professional Review Process
Enforcement of ADR Agreements
Conclusion
Endnotes
Appendix A: The NASW Standards of Practice for Social Work Mediators
Appendix B: Selected Excerpts from NASW Procedures for Professional Review
An important part of a social worker’s professional responsibility is to manage conflict in a productive manner. Whether advocating for clients, dealing with conflict within organizations, or resolving conflict in employment settings or in the delivery of services to clients, social workers are involved with conflict resolution daily.1
Social workers are increasingly compelled to follow disputes into court, whether as fact witnesses, expert witnesses, or parties to lawsuits. The many tensions and negative feelings associated with litigation leave social workers and others asking whether there is a better method for conflict resolution. The courtroom can be both costly and time consuming, sometimes taking years for the simplest case to go to trial.
The practice of resolving disputes in the courtroom is being replaced or assisted in many areas by alternative dispute resolution (ADR) processes. The courts, state and federal agencies, and employers have all begun providing private and less adversarial methods of dispute resolution than litigation. "ADR is perceived as the solution to problems of runaway jury verdicts, expensive discovery proceedings and protracted litigation. Accordingly, courts, legislatures, government agencies, and private organizations are endorsing various forms of ADR."2
ADR is a process by which parties to a dispute resolve their differences without litigation. Social workers participate in ADR both as providers and as parties. This law note describes the three principal methods of voluntary alternative dispute resolution – negotiation, arbitration, and mediation – and discusses traditional and evolving uses for these processes within the social work profession, including the use of mediation in the resolution of NASW Code of Ethics3 violations.
Endnotes
1. Bernard Mayer, Conflict Resolution, in ENCYCLOPEDIA OF SOCIAL WORK 1:415 (Terry Mizrahi & Larry Davis eds., 20th ed. 2010).
2. Stuart Bompey et al., The Attack on Arbitration and Mediation of Employment Disputes, 13 Lab. Law 21, 27 (1997); see also Deborah Hensler, Our Courts, Ourselves: How the Alternative Dispute Resolution Movement Is Reshaping Our Legal System, 108 Penn. St. L. Rev. 165 (2003).
3. National Association of Social Workers (hereinafter NASW), Code of Ethics (2008), available at http://www.naswdc.org/pubs/code/code.asp.
Social workers are increasingly compelled to follow disputes into court, whether as fact witnesses, expert witnesses, or parties to lawsuits. The many tensions and negative feelings associated with litigation leave social workers and others asking whether there is a better method for conflict resolution. The courtroom can be both costly and time consuming, sometimes taking years for the simplest case to go to trial.
The practice of resolving disputes in the courtroom is being replaced or assisted in many areas by alternative dispute resolution (ADR) processes. The courts, state and federal agencies, and employers have all begun providing private and less adversarial methods of dispute resolution than litigation. "ADR is perceived as the solution to problems of runaway jury verdicts, expensive discovery proceedings and protracted litigation. Accordingly, courts, legislatures, government agencies, and private organizations are endorsing various forms of ADR."2
ADR is a process by which parties to a dispute resolve their differences without litigation. Social workers participate in ADR both as providers and as parties. This law note describes the three principal methods of voluntary alternative dispute resolution – negotiation, arbitration, and mediation – and discusses traditional and evolving uses for these processes within the social work profession, including the use of mediation in the resolution of NASW Code of Ethics3 violations.
Endnotes
1. Bernard Mayer, Conflict Resolution, in ENCYCLOPEDIA OF SOCIAL WORK 1:415 (Terry Mizrahi & Larry Davis eds., 20th ed. 2010).
2. Stuart Bompey et al., The Attack on Arbitration and Mediation of Employment Disputes, 13 Lab. Law 21, 27 (1997); see also Deborah Hensler, Our Courts, Ourselves: How the Alternative Dispute Resolution Movement Is Reshaping Our Legal System, 108 Penn. St. L. Rev. 165 (2003).
3. National Association of Social Workers (hereinafter NASW), Code of Ethics (2008), available at http://www.naswdc.org/pubs/code/code.asp.
NASW Law Note: Social Workers and Alternative Dispute Resolution was reviewed by Don R. Kelly for the journal Social Work.
As the authors indicate in their introduction, managing conflict is a professional responsibility for all social workers. This book, part of the National Association of Social Workers’ (NASW’s) Law Note Series, looks at alternative dispute resolution (ADR) from the perspective of the attorney. Polowy was until recently NASW’s General Counsel, Morgan was Associate General Counsel, Khan was a legal researcher, and Zula was a law clerk. Although the book does discuss various forms of ADR, its main focus is more closely associated with social workers who aspire to be mediators.
The main text takes half the first half of the book; the second half includes endnotes and appendices. Appendix A offers good information regarding the NASW standards for mediators and mediation practice. Appendix B imparts excerpts from the NASW procedures for professional review, related to adjudication and mediation.
The book starts off with a section titled “ADR and What It Encompasses,” which includes information regarding negotiation, arbitration, and mediation. These ADR processes are well defined, and social workers would benefit from reading and understanding them. The book, however, does not define other ADR processes such as neutral evaluation, settlement conferences, case conferencing, parenting coordination, summary jury trials, minitrials, moderated settlement conference, or neutral fact finding. Collaborative law is discussed later in the book.
Read the full review. Available to subscribers of Social Work.
As the authors indicate in their introduction, managing conflict is a professional responsibility for all social workers. This book, part of the National Association of Social Workers’ (NASW’s) Law Note Series, looks at alternative dispute resolution (ADR) from the perspective of the attorney. Polowy was until recently NASW’s General Counsel, Morgan was Associate General Counsel, Khan was a legal researcher, and Zula was a law clerk. Although the book does discuss various forms of ADR, its main focus is more closely associated with social workers who aspire to be mediators.
The main text takes half the first half of the book; the second half includes endnotes and appendices. Appendix A offers good information regarding the NASW standards for mediators and mediation practice. Appendix B imparts excerpts from the NASW procedures for professional review, related to adjudication and mediation.
The book starts off with a section titled “ADR and What It Encompasses,” which includes information regarding negotiation, arbitration, and mediation. These ADR processes are well defined, and social workers would benefit from reading and understanding them. The book, however, does not define other ADR processes such as neutral evaluation, settlement conferences, case conferencing, parenting coordination, summary jury trials, minitrials, moderated settlement conference, or neutral fact finding. Collaborative law is discussed later in the book.
Read the full review. Available to subscribers of Social Work.
