Ethics: ABA Committee Addresses Mediator's Duty of Care in Drafting Agreements (July 21).

The American Bar Association’s Standing Committee on Mediator Ethical Guidance, which is part of the ABA’s Section of Dispute Resolution, last month released a new opinion addressing the level of care mediators must take when unrepresented parties request the mediator to draft a settlement agreement in divorce mediation.

The June 24 opinion addresses vital mediation issues, including ethical duties and responsibilities of mediators, both lawyers and non-lawyers; concerns for mediators providing legal advice, and issues of impartiality and self-determination that may arise if a mediator acts as a drafter of an agreement.  

At the center of the 17-page opinion is the dual nature of the role the mediator takes on when asked to draft, and invokes unauthorized practice of law rules and statutes.

The opinion, SODR-2010-1, provides a resource guide that includes references to 12 states’ methods of dealing with the issue of the neutral as the drafter.

The issue arises because divorce parties frequently aren’t represented in front of mediators.  In requesting a mediator to become a drafter, some parties do not retain their own attorneys to prepare or even review the agreement.

The opinion sets forth four questions on the topic of mediators acting as drafters. First, the opinion addresses the ethical responsibilities of lawyer-mediators in connection with the preparation of the document.

Second, the opinion explores the mediator's ethical duties with respect to the parties.

Third, the opinion discusses whether the subject matter of the mediation, e.g. division of property instead of custody, changes the neutral’s ethical considerations.

Finally, the opinion asks whether ethical responsibilities vary depending on whether the mediator is a lawyer.

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Although the committee does not endorse any particular mediator style, it recommends that family law mediators first be guided by the Model Standards of Practice for Family and Divorce Mediation.  The committee cites relevant provisions in the 2005 Model Standards of Conduct for Mediators and makes comparisons with the family mediation standards.

The mediation definition in the 2005 Model Standards preamble does not expressly include the drafting or preparing of mediated settlement agreements. But Standard 1(A) holds that parties may use “self-determination” over their mediation process.

The ABA ethics committee's answer to the first question about the scope of the responsibilities of mediators in connection with document preparation noted that lawwyer-mediators may act as “scriveners” and simply “memorialize” the parties’ agreement.

But if the lawyer-mediator suggests additional language for an agreement, then he or she should advise the parties to get outside help.  

Under Model Standard VI(A)(5), the opinion states, “The mediator would need to consider whether providing that information or advice, by suggesting additional contractual provisions, affects the self-determination of any party--positively or negatively--and whether it may affect the parties’ perceptions of the mediator’s impartiality.”

Some might argue that a mediator who serves a drafting role has already taken on the job of an attorney. In addition, many states define the practice of law as “drafting legal instruments.”
                            
The bottom line, according to the committee, is that there is no ethics prohibition under the 2005 Model Standards to mediators drafting if the mediator is competent to do so.  The mediator may act as a scrivener, the opinion states, but if legal advice is provided or legal counsel tasks performed, then the mediator needs to disclose and advise, and take care not to mix the roles of counsel and mediator.

The second question, on the ethical duties of mediators with respect to the parties, addresses the mixed-role issue.  The committee ethics opinion says that the 2005 Model Standards arguably allow lawyer-mediators an opportunity “to provide legal information to the parties.” But providing legal advice to parties can lead to "inappropriately mixing the roles of legal counsel and mediator." Model Standards VI (A)(5)..  

At minimum, the lawyer-mediators must receive consent and notify the parties of the “shifting roles.”

The third question considered by the committee, on whether the mediation subject matter–in the query, property v. custody issues--renders different ethical considerations, the committee concluded it did not, even if the mediation only involves a “division of property.”

The committee also considered whether ethical responsibilities vary depending on whether the mediator is a lawyer.  The 2005 Model Standards allow all mediators to act as scrivener to a party's agreement. Given the complexity of divorce-related settlement, however, the drafting activity concerns should be governed by the Unauthorized Practice of Law applicable in the state where the ADR activity is taking place.

--Diana Gesualdi, CPR Intern