If mediating for unrepresented parties, lawyer must explain role clearly, new ABA ethics opinion says
Sometimes lawyers who work as mediators must explain to unrepresented parties the differences between mediating a case and representing clients and discuss what that means, according to a new ethics opinion by the ABA’s Standing Committee on Ethics and Professional Responsibility.
Formal Opinion 518, published Wednesday, also states that a lawyer-mediator must take great care not to make misleading statements to parties during mediation.
The opinion relates to Model Rule 2.4 of the ABA Model Rules of Professional Conduct, which addresses work as a third-party neutral. It mandates that lawyer-mediators inform unrepresented parties that they are not their lawyers and requires that the differences be explained plainly, if it seems that a party is confused.
The rule also has a comment, with guidance that sometimes lawyers have to go into more detail about “the important differences between the lawyer’s role as third-party neutral and a lawyer’s role as a client representative.”
Based on the comment guidance, according to the opinion, “unless the parties are sophisticated consumers of mediation services, it is prudent for the lawyer-mediator not only to inform all parties that the lawyer-mediator does not represent them but also to afford them an opportunity to discuss what this means.”
Furthermore, a lawyer-mediator must avoid statements or creating the impression that they are “providing the protections of the client-lawyer relationship,” according to the opinion.
This also means that a lawyer-mediator must not state that they are acting in a party’s best interests or that a proposed settlement is in the party’s best interests, according to the opinion. This could mislead the party into thinking that the lawyer-mediator is representing the party, according to the opinion.
Additionally, the opinion notes that mediators must be careful to not make exaggerated or “misleading statements about the strength or weakness of a party’s case.” Doing so could amount to violating Model Rule 8.4(c), which generally prohibits lawyers from making dishonest, fraudulent or misleading statements.
An Oct. 15 press release from the ABA is here.
Write a letter to the editor, share a story tip or update, or report an error.
