ODR Practice Insurance and Practice of Law Issues
1. Mediation and ODR (the Internet) are good examples of “legal fictions,” dissonance between outdated legal and professional rules (e.g. courthouses and practice by state) and today’s online reality.
2. Background: Never a successful liability case against a mediator who gives proper process description, maintains role. Lange v. Marshall. Not only need to show negligence, but causation (“but for”), and, critically, damages, with specificity. Near impossible to do. Distinguish intent to harm cases and multiple inconsistent role cases.
3. Perhaps ask what does your “profession of origin” insurance cover? Any geographic limits (usually by state)? Any mention of “online?”
4. What is the “practice of law” – either giving legal advice or customized legal drafting. Non-legal drafting and “fill in the blanks” ok.
5. “ADR insurance” – e.g. Complete Equity Markets www.mediate.com/articles/insurance.cfm - not limited geographically, nor by online.
Historically, same price for mediation or mediation + arbitration.
Perhaps consider asking “ODR” or “Online Mediation” to be added?
Also “low case volume” option.
6. Basically, nothing about ODR in insurance policies, even though EVERY CASE NOW ODR! It is the air we breathe! Strong argument all covered! But, does this mean we expect “Global” coverage?
7. Re Practice of Law and Across State Lines – Don’t “practice law” – don’t give individual advice; tailor your drafting toward “Memorandum of Understanding,”
e.g., “This Memorandum is intended to accurately reflect understandings reached by the parties during their mediation. This is not, however, a legal document, and can only be made so by the parties, subsequent to the mediation, indicating their intent to be legally bound and by adding their signatures . . . “