The Mediator's Tightrope: ABA Formal Opinion 518
The American Bar Association Standing Committee on Ethics and Professional Responsibility has issued Formal Opinion 518 directed at mediator conduct.
It crystallizes a key distinction in professional conduct obligations: the permissible scope of representation varies considerably based on whether a lawyer functions as an advocate or neutral—with the opinion re-asserting the importance of the limited ABA Model Rules of Professional Conduct that apply to neutrals’ roles.
The opinion’s tenets aren’t new. But they serve as a caution. For neutrals and especially for practitioners who toggle between these roles, the opinion demands careful recalibration of communications.
The Doctrinal Divergence
The opinion exposes a fundamental asymmetry in the Model Rules' treatment of truthfulness. Lawyers representing clients in negotiations, including mediation, operate under Rule 4.1's constraint against "false statement[s] of material fact or law," but Comment [2] carves out substantial breathing room for negotiation conventions.
The comment says that statements concerning settlement posture or case valuation fall outside the "material fact" prohibition. As ABA Formal Opinion 06-439 articulates, counsel may "downplay a client's willingness to compromise" or engage in "overstatements or understatements of the strengths or weaknesses of a client's position" without triggering Rule 4.1 or 8.4(c) liability, which delineates professional misconduct in derogation of maintaining the integrity of the profession.
Lawyer-mediators, however, occupy different ethical terrain, the new opinion, released on Oct. 15, notes. Because they represent no party, Rule 4.1 doesn't apply. They remain subject to Rule 8.4(c)'s prohibition on conduct involving "dishonesty, fraud, deceit, or misrepresentation," but critically, that rule applies without the negotiation convention safe harbor that Comment [2] to Rule 4.1 provides.
The Reliance Rationale
The new Formal Opinion 518's animating principle is straightforward, and articulated with precision: "False statements that would not be regarded as statements of 'material fact' under Rule 4.1, or violate Rule 8.4(c), coming from a party's lawyer are likely to be taken at face value coming from a lawyer-mediator precisely because of the lawyer-mediator's role as a neutral." Formal Op. 518, Section III.
Parties engage opposing counsel with appropriate and abundant skepticism. They expect posturing, discount hyperbole, and evaluate advocacy communications through a lens of adversarial self-interest.
But the lawyer-mediator's institutional role fundamentally alters the communicative context. Having been informed under Rule 2.4(b) –“Lawyer Serving as Third-Party Neutral”--that the mediator represents no party and serves a facilitative rather than representative function, parties reasonably expect unvarnished assessment. The mediator's neutrality creates enhanced reliance interests that Rule 8.4(c) on misconduct protects.
(Though cited briefly in the opinion, Rule 1.12 also explicitly discusses lawyer-as-neutral ADR representation responsibilities, titled, “Former Judge, Arbitrator, Mediator or Other Third-Party Neutral.” (Available at https://bit.ly/4hv3YgB.))
Prohibited Conduct Under the Opinion
The new opinion—titled “Formal Opinion 518—A Lawyer’s Duties to Avoid Misleading Communications When Acting as a Third-Party Neutral Mediator”--delineates specific prohibitions for lawyer-mediators, with particular attention to the gradations between permissible facilitation and impermissible role appropriation:
Representations concerning settlement parameters. A mediator cannot state "this is the best offer the opposing party will make" when that assertion is false. Formal Op. 518, Section III. Such statements, while potentially permissible from party counsel as negotiation puffery, constitute actionable misrepresentation from a neutral. The prohibition extends to “any inappropriate gloss in describing to one party the position that the other party is taking." The mediator must convey party positions with precision, resisting the temptation to enhance their persuasive force through strategic reframing.
Interest-based assessments. The mediator may not assert that a proposed resolution serves a party's "best interest." Id., Section II. This prohibition extends beyond explicit declarations; “the lawyer-mediator "should not state or imply that a settlement is in the party's best interest because a tribunal is likely to decide adversely to the party." Id. (Emphasis is in the opinion.) The critical distinction lies between providing information that enables party self-assessment versus substituting the mediator's judgment for the party's own interest calculus. The opinion recognizes that the fiduciary duty to optimize outcomes inheres exclusively in the attorney-client relationship; the mediator's mandate is dispute resolution, not interest maximization for any party.
The legal advice/legal information boundary. The opinion navigates carefully between permissible and prohibited communications regarding legal issues. The opinion says that it is not misleading for mediators to "provide legal information or to discuss the parties' respective views of how a tribunal would resolve a legal or factual question" and may "offer an opinion as to how a tribunal is likely to rule on an issue." Id.
Mediators, however, must "avoid communicating in a manner that might be taken as rendering legal advice, or otherwise suggesting to a mediation party that the lawyer-mediator's role is to protect or advance a party's legal interests or to help the party to attain a particular desired result." Id.
This distinction references the analysis in ABA Formal Opinion 10-457 concerning legal information versus legal advice. The mediator may explain how courts generally interpret contractual provisions or evaluate damages—but cannot cross into advising what a particular party should do given that legal landscape.
If a party—“particularly an unrepresented party”--requests legal advice, the mediator "should again explain the mediator's role and advise the party to seek legal advice from counsel of their choice." Id. The mediator who provides legal advice risks inadvertently forming a client-lawyer relationship under Restatement (Third) of the Law Governing Lawyers §14 (2001), fundamentally compromising the neutral role. Id., Section II, n.7.
Crediting known falsehoods. Even when accurately conveying party representations that constitute permissible negotiation puffery, the mediator cannot "give credence" to statements the mediator knows to be false "by suggesting that the lawyer-mediator credits them or by implying that the opposing party should do so." Id., Section III.
This represents perhaps the opinion's most delicate line-drawing. The mediator may transmit party statements that would qualify as puffery if made by counsel--assertions about settlement willingness, case valuation, or litigation strength— but must maintain clear attribution and avoid any communicative act that validates the substance. The mediator might state, "Party A represents that this is their final offer," but cannot add editorial credence--such as "and based on our discussions, I believe that's accurate"--when the mediator knows otherwise.
Appropriation of advocacy role. Communications suggesting the mediator is "acting to achieve a party's best interest" violate the duty to maintain role clarity under Rule 2.4(b). Id., Section II. This extends to statements in conducting the mediation that imply the lawyer-mediator will provide "the protections of the client-lawyer relationship." Id.
Even well-intentioned mediator efforts to protect vulnerable parties from unfavorable outcomes risk role confusion if framed as the mediator advocating for that party's interests rather than facilitating the party's own informed decision-making.
Permissible Mediator Communications
The opinion preserves substantial latitude for effective mediation practice:
Providing legal information. Mediators are not misleading the participants when they "provide legal information or . . . discuss the parties' respective views of how a tribunal would resolve a legal or factual question." Id., Section II. This includes offering opinions on probable litigation outcomes, provided such assessments aren't framed as determinative of whether settlement serves a party's interests.
Transparent conveyance. Mediators may relay party statements, including those that would constitute negotiation puffery from counsel, "as long as the lawyer-mediator makes clear the origin of such statements and that the statements do not represent an opinion of the lawyer-mediator." Id., Section III, n.9.
Facilitative information. The mediator may "provide truthful information that helps the parties to conclude for themselves" whether a resolution serves their objectives. Id., Section II. The critical distinction lies in enabling party self-assessment rather than substituting the mediator's judgment.
The Rule 2.4(b) Predicate
Opinion 518 reinforces that effective neutral practice begins with comprehensive role clarification. Rule 2.4(b) mandates that mediators "inform unrepresented parties that the lawyer does not represent them," and explain the functional differences between neutral and representative roles when parties lack understanding of the mediation process.
Comment [3] to Rule 2.4 recognizes a sliding scale: sophisticated repeat players may require minimal clarification, while first-time mediation participants need more extensive explanation. The opinion counsels that "[u]nless 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." Formal Op. 518, Section I.
This threshold duty assumes heightened significance in light of Rule 8.4(c)'s application on the prohibition of lawyers engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. Parties cannot reasonably rely on mediator neutrality, and mediators cannot be held to enhanced truthfulness obligations—absent clear understanding of the mediator's role. The Rule 2.4(b) disclosure requirement thus operates as both independent obligation and predicate for Rule 8.4(c) analysis.
Practice Implications
Opinion 518 demands heightened self-monitoring from lawyer-mediators, particularly in caucused mediation where the mediator shuttles between parties conveying offers, assessments, and strategic considerations.
Mediators must resist the temptation to deploy advocacy techniques that proved effective in representational practice. The persuasive exaggeration, strategic ambiguity, and calculated overstatement that constitute legitimate advocacy tools become ethical violations when emanating from a neutral.
As the opinion notes, "parties to a mediation, having been advised about the lawyer-mediator's neutral role, would have no similar reason to be on their guard when receiving communications from that individual." Id., Section III.
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Formal Opinion 518 clarifies what many practitioners intuitively understood but lacked doctrinal framework to articulate: neutrality imposes distinctive obligations that transcend those applicable to advocates.
The opinion's contribution lies not in novel ethical principles but in explicit acknowledgment that Rule 8.4(c) operates asymmetrically across professional roles, demanding greater communicative precision from neutrals than from advocates precisely because neutrals occupy positions of enhanced trust.
For lawyer-mediators, the opinion reinforces that effectiveness in dispute resolution derives from institutional credibility, not advocacy tactics. The mediator's persuasive authority flows from perceived neutrality—and that neutrality depends on scrupulous adherence to truthfulness obligations that exceed those binding party counsel.
The ABA opinion is available at https://bit.ly/4oyFi94. An interesting commentary can be found at Kris Olson, “ABA opinion clarifies lawyer-mediator ethics rules,” Massachusetts Lawyers Weekly (Oct. 27) (available at https://bit.ly/3WsKD5S).
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The author was a 2024 CPR Summer Intern while a student at Brooklyn Law School, in Brooklyn, N.Y., and graduated with her J.D. degree in May.
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