August 12, 1996
A lawyer acting as a mediator in a domestic dispute resolution process may draft documents which purport to represent the understanding reached between the parties.
References: MRPC 1.7, 2.2; RI-235, RI-256.
A lawyer, who acts as a neutral mediator in domestic dispute mediation, inquires about the propriety of drafting documents purporting to represent the understandings reached by the parties at the mediation. No facts are presented which expressly or impliedly suggest that any of the parties to the mediation are former or current clients of the inquirer.
Generally, organized bar groups have promoted the concept of alternate dispute resolution as a viable option for disputing parties, compared to the often more expensive and protracted civil proceeding. To facilitate those programs, lawyers have routinely offered to participate in the programs as neutral mediators. The American Bar Association has established Standards of Practice for Lawyer Mediators in Family Disputes to provide guidance to lawyers assuming the role of mediator in domestice relations matters. The ABA Standards define family mediation as an informal consensual process through which a lawyer helps family members resolve their disputes.
While acting as a neutral mediator, a lawyer must be vigilant about the ethical constraints which would prohibit the expansion of the lawyer's limited role as mediator. To the extent that parties might confuse the lawyer's traditional role as an advocate with the lawyer's neutral role as mediator, the lawyer should be careful to inform the participants that the lawyer cannot and does not represent either party to the mediation. RI-256.
Upon tentative resolution of the dispute, it is not inappropriate for a mediator to suggest that the parties memorialize their understandings in a written document. The lawyer, in the role of neutral mediator, is not per se prohibited from preparing the document. MRPC 1.7 and 2.2, which relate to the lawyer's role with clients, are not implicated. In accord, Arizona Op 96-01. The lawyer mediator should assure that unrepresented parties have an opportunity to obtain independent legal counsel for purposes of evaluating any tentative agreement that they might reach through the mediation process. RI-256. In accord, ABA Standard VI D, "[w]hile a mediator cannot insist that each participant has separate counsel, they should be discouraged from signing any agreement which has not been so reviewed."
The lawyer mediator is not per se prohibited from preparing pleadings for purposes of implementation of the memorandum of understanding. However, any activity in this regard would be construed as legal services by a lawyer, not mediation, and would necessarily invoke MRPC 1.7, 2.2, and other ethics duties.
For an analysis of ethical duties applicable when a party-nominated mediator is asked to become an advocate of a party, see RI-235.