April 8, 1996
The touchstone for a lawyer functioning as a neutral arbitrator or mediator in an alternate dispute resolution proceeding in which one or more of the participants is self-represented is to preserve neutrality.
A lawyer functioning as a neutral arbitrator or mediator in an alternate dispute resolution proceeding in which one or more of the participants is self-represented should assure that all parties understand that the lawyer's function is not to provide advice or counsel to any party, and that no party may rely on the lawyer to protect its interests or (in arbitration, where ex parte communications are forbidden) confidences.
References: MRPC 8.4(b) and (c); MCJC 1, 2B, 3A(4) and (8); MCR 3.602(J)(1)(b).
The Committee has been asked to analyze the ethical strictures, if any, that guide a lawyer who has been selected or appointed in alternate dispute resolution proceedings (ADR) to serve as a neutral mediator or arbitrator in dealing with unrepresented parties. The specific question posed has been phrased as follows:
"When a lawyer serves as a neutral arbitrator or mediator, is the lawyer permitted or required by ethics rules to advise unrepresented parties of their legal rights and responsibilities, beyond explaining the ADR proceedings?"
The Michigan Code of Judicial Conduct allows judicial discretion in determining the extent to which a judge operating in an adjudicative capacity may or should become involved in assisting litigants, whether represented or not, in presenting their positions. MCJC 3A(4) calls upon judges to accord every person legally interested in a proceeding, or the person's lawyer, "full right to be heard according to law." MCJC 3A(8) authorizes a judge to intervene in trial of a case to promote expedition, prevent waste of time, or clear up some obscurity, but cautions against intervention which causes witnesses to be frightened or intimidated, or which otherwise tends to prevent proper presentation of the cause of the ascertainment of the truth. The same provision urges judges to avoid interruptions of counsel in their arguments except for purposes of clarification. MCJC 1 requires the judge to maintain an independent judiciary, and MCJC 2B requires a judge to act in a manner which promotes public confidence in the integrity and impartiality of the judiciary.
A neutral adjudicator in ADR proceedings, although obviously not a judge and not subject to the Michigan Code of Judicial Conduct, nonetheless is constrained to maintain neutrality in both act and deed with respect to the ADR proceeding from start to finish. MCR 3.602(J)(1)(b); Los Angeles Op 415 (1983). MCJC 3A(4) and (8) could well be considered declaratory of what neutrality means in practice, although an arbitrator or mediator would almost certainly be given greater leeway, given the limited scope of judicial review of arbitration. In contrast, a mediator's job is to bring the parties to agreement; any hint of favoritism would be antithetical to accomplishment of that goal, but mediation is also much less formal, and it would seem normal for a mediator to engage in give and take with each side in turn as part of the process of finding common ground.
Mich Const 1963, art 1, §13, guarantees to all persons, in civil and criminal proceedings, the right of self-representation. In criminal cases, persons who opt for self-representation must be advised by the presiding judicial officer of the right to counsel. There is no corresponding right to counsel in civil cases, and hence no predicate right to the assistance of legal counsel to which to extend.
Thus, on the assumption that ADR issues would fit into the general category of civil matters in which there is no constitutional or judicially created right to counsel, no requirement of giving advice can be imposed. However, the lack of a requirement cannot be interpreted as a prohibition. Other states have deemed the giving of advice concerning the dangers of self-representation in mediation or arbitration matters something that "should" be done, whether or not it "must" be done. Florida Op 86-8 (1986); Connecticut Op 35 (1982); Ohio Op 82-2 (1982); Tennessee Op 90-F-124 (1990). In the same vein, the lawyer should additionally assure understanding by the parties that the lawyer represents neither of them and neither should look to the lawyer to protect that party's individual interests or (as arbitrator) to preserve any confidences (since ex parte communications are prohibited). New York Op 80-23.
Although a neutral arbitrator or mediator need not be a lawyer, when a lawyer is selected to fulfill these functions the lawyer is bound by the Michigan Rules of Professional Conduct. Neutrality again is the touchstone, since any breach thereof would arguably constitute conduct prejudicial to the administration of justice, in violation of MRPC 8.4(b) or (c). Other Rules apply by their terms only to lawyers engaged in a representation, i.e., to lawyers representing clients. By definition, a neutral arbitrator or mediator has no client with respect to the matter being arbitrated or mediated. See New Jersey Op 494 (1982), New Hampshire Op 1990-91/9 (1991).
There will undoubtedly be occasions when the fine line between acceptable sua sponte intrusion into the proceedings to guide or focus a self-represented party on the one hand, which is permissible and functioning as advocate or counsel to that party, which is prohibited becomes blurred. See New Hampshire Op 89-90/15 (1990); Virginia Op 590 (1985); New Hampshire Op 1987-8/3 (1987). But every day, in courtrooms and administrative proceedings throughout the state and the nation, judges, hearing officers, and their counterparts faced with self-represented parties exercise an unremarkable degree of discretion in facilitating the orderly presentation and fair disposition of the issues pending before them.
Nothing in either MCJC or MRPC compels anything but neutrality on the part of a lawyer functioning as a neutral arbitrator or mediator in proceedings involving a self-represented party. Likewise, nothing prohibits such a neutral adjudicator in gratuitously and sua sponte offering such self-represented parties information when in the opinion of the adjudicator fairness either permits or demands such action. In mediation, where the goal is agreement, it would seem commonplace for the mediator to ensure, before the deal is closed, that both sides understand what they are gaining and what they are relinquishing.