“Danger Ahead”:
Ethics Guidelines for Lawyer-Mediators

Lawyers working as mediators must look to multiple sources for ethical guidance. Examination of the new Model Standards for Mediators, Rule 114, and the Rules of Professional Conduct suggests that conflicts among the rules may prove troublesome.

By Carolyn Chalmers

A friend was recently vacationing in Ireland.  He was struck by the frequency of signs by the roadside saying, simply, “Danger Ahead.”  Our friend noted ruefully that it would have been helpful to know what kind of danger lay ahead or — lacking that — to have information about how far ahead to expect the danger.  This article claims no more than the Irish road sign: it hopes to alert lawyer-mediators to developing tensions in the expectations of their conduct.

Over the last 20 years, and particularly in the last decade, lawyers have developed practices as mediators, principally mediating legal disputes, often court-referred and usually with parties represented by counsel.  Many of these same lawyers have continued to practice law as advocates for clients.  In this latter traditional lawyer role, lawyers are governed by the recently revised Minnesota Rules of Professional Conduct (“Rules of Professional Conduct” or “RPC”).

These rules, however, have provided little guidance to lawyers as mediators.  In their place, Rule 114 of the Minnesota General Rules of Practice for the District Courts (“Rule 114”), Minnesota’s Civil Mediation Act (Minn. Stat. §§572.31-572.40) and Minnesota’s witness privilege statute concerning ADR practitioners (Minn. Stat. §595.02) have provided standards for the general practice of mediation.  Additional statutes regulate mediation in special contexts, such as debtor-creditor, farmer-lender, and child custody, but these will not be addressed here. The most detailed of the general regulations, Rule 114, applies to lawyers and nonlawyers; so it does not focus on the special ethical challenges lawyers face when they practice as mediators.  In its Code of Ethics, Rule 114 expressly cautions that it does not create a legal duty for mediator conduct.1

For the lawyer-mediator, the gap between the Minnesota Rules of Professional Conduct and the prescriptions of Rule 114 is closing due to two recent developments.  In 2005, two new sets of standards affecting Minnesota lawyer-mediators were endorsed: the Model Standards of Conduct for Mediators (2005) (the “Model Standards”) and the Rules of Professional Conduct.2  Lawyer-mediators now have more robust ethical guidance which must be reconciled with the way mediation in court-connected cases is actually conducted.  In contrast to Rule 114, the Model Standards alert mediators “ … to the fact that the Standards might be viewed as establishing a standard of care for mediators.”3

The “dangers ahead” signage should not be over-dramatized.  While the academic ADR literature is critical of mediation as it has been institutionalized by the courts and practiced by lawyer-mediators,4 the developing case law is reassuring for lawyer-mediators.  Litigation involving significant mediation issues nearly doubled from 1998 to 2003; it has rarely targeted mediator conduct.5  As Hamline University law professors Peter Thompson and James Coben note in a forthcoming article:

Litigation could increase, however, if the Model Standards are interpreted as establishing a standard of care for mediators.

This article provides a general overview of the Model Standards and the Rules of Professional Conduct, applies them to some typical lawyer-mediator conduct, and offers some suggestions for lawyer-mediator practice.

Overview

The Model Standards were developed by a joint committee of representatives from the American Bar Association (ABA) Section on Dispute Resolution, the American Arbitration Association (AAA), and the Association for Conflict Resolution (ACR).  Originally adopted in 1994, the revised 2005 version was adopted by the ACR Board of Directors and by the ABA House of Delegates in August 2005 and by the AAA soon after.

The Model Standards have three stated purposes: to guide the conduct of all mediators (including lawyer-mediators), to inform parties about standards for the process, and to promote public confidence in the process.7  The Model Standards contain nine individual standards.  Chief among these is party self-determination.  In a pointed corollary, Standard I.B prohibits a mediator from undermining party self-determination for reasons of higher settlement rates, egos, fees, or pressures from courts. addressing mediator conduct in the areas of self-determination, impartiality, conflicts of interest, competence, confidentiality, quality of the process, advertising and solicitation, fees and other charges, and advancement of mediation practice.

The revised Rules of Professional Conduct became effective in Minnesota October 1, 2005.  The Preamble to the Rules, for the first time, recognizes that lawyers may serve as neutrals (in other than judicial roles) and clarifies that certain rules apply specifically to lawyer neutrals while others apply both to lawyers actively practicing and those not in the active practice of law.8  RPC 1.12 prohibits lawyer-mediators from representing anyone in connection with a matter that they mediated unless all parties give informed, written consent.  It permits lawyers in the same firm to subsequently represent parties who were in the mediation without client consent so long as there is a timely screen, no fee-sharing with the lawyer-mediator, and prompt notice to all parties and any appropriate tribunal.  RPC 2.4 makes clear that a lawyer serving as a neutral must clearly communicate to unrepresented parties that the lawyer is not representing them and, if necessary, explain the difference between the neutral’s role and the role of lawyer-advocate.9

Key concepts in both the Model Standards and the Rule 114 are self-determination, neutrality, conflicts, role definition, confidentiality, and a quality process.  The following sections describe how a lawyer-mediator might handle several of these issues, analyze how the ethical standards would apply to that conduct, and suggest some practices for lawyer-mediators.

Disclosing Potential Conflicts

An introductory comment by a lawyer-mediator, such as the following, is not wrong so far as it goes, but fails to go far enough to fully comply with the Model Standards.

Commentary:  Model Standard III.B rquires a mediator to make reasonable inquiry into the facts likely to create a potential or actual conflict of interest.  A mediator is required to disclose actual and potential conflicts of interest and secure consent from the participants prior to proceeding.10

Suggestions:  Make sufficient inquiry and disclose all potential conflicts.  Consider documenting in the Agreement to Mediate the inquiry made into the facts, the information disclosed regarding potential conflicts, and the parties’ subsequent consent to retaining the mediator.  For example:

Clarifying Roles

The opening comments by a lawyer-mediator at the beginning of a mediation where the parties are unrepresented might include:

Commentary:  This introduction fails to satisfy RPC 2.4, requiring a lawyer-mediator to inform unrepresented parties that the mediator is not representing them.  The mediator must explain the difference between the roles of lawyer-mediator and lawyer-advocate if there is reason to believe that a party does not understand the lawyer’s role as a neutral.

Suggestions:  A statement about the mediator role, distinguishing it from the advocate role, can be included in the lawyer-mediator’s introductory comments at the beginning of a mediation session.  As a routine matter, the lawyer-mediator might include in the Agreement to Mediate:

Pushing Settlement
Assume for purposes of this discussion that while most lawyer-mediators may be unbiased, they are not disinterested. They want to achieve settlement of disputed issues.  In this sense they are advocates for settlement, albeit not advocates for one or the other party, nor for any particular outcome.  But they are invested in getting an outcome.11

Commentary:  This introduction comes close to promising settlement as the outcome of the mediation. It also subtly pressures the parties not to be so obdurate as to damage the mediator’s settlement rate. Both Model Standard VII.A.3 and Rule 11412 prohibit the mediator from promising specific outcomes as a result of the mediation.  Furthermore, pressuring the parties is antithetical to the Model Standards’ first principle of self-determination:

The Reporter’s Notes add that the 2005 version “has been sharpened to eliminate any ambiguity” regarding the mediator’s duty not to coerce parties to settle.14

Suggestion:  Delete any references to settlement rates achieved in mediation from the mediator’s written summary of qualifications, advertisements, and introductory comments to the parties. 

Promising Confidentiality

Lawyer-mediators commonly introduce a mediation session with an explanation of  confidentiality.

Commentary:  Professors Coben and Thompson have found that testimony about mediation frequently has been introduced at trial, and often without any objection on the grounds of confidentiality.15  As they note:

Suggestions:  Lawyer-mediators should not over-promise confidentiality.  Caveats should be added to explanations about confidentiality, perhaps like the following provision in an Agreement to Mediate:

There may be unusual circumstances where courts will require or allow parties to provide evidence of mediation communications. Evidence is not rendered inadmissible or nondiscoverable as a consequence of its use in the mediation process if the evidence would have been otherwise admissible or discoverable.  In a court-connected mediation, the mediator may disclose to the court whether a settlement has been reached.  If a settlement is reached, the terms of the settlement and any executed agreement may not be treated as confidential in a subsequent lawsuit to enforce the settlement.17

Caucusing

Assume that most lawyer-mediators mediate largely, some exclusively, through use of the caucus method.  A lawyer-mediator often shares information learned in a caucus session with the other side to promote understanding and to exchange settlement proposals. A common instruction by the lawyer-mediator in caucus might be:

Commentary: This instruction is the opposite of what the Model Standard V.B requires:

Section V.6 of the Reporter’s Notes to the Model Standards rejects the alternative, presumably in wide use by lawyer-mediators, of placing the responsibility for flagging information that is meant to be kept confidential on the party with whom the mediator is caucusing.

Suggestion:  The mediator should ask, at the close of every caucus session, whether the party consents to sharing the information obtained during the caucus session.

 Evaluating Legal Claims

Lawyer-mediators have a tool for accomplishing settlement that nonlawyers do not: the ability to evaluate the legal strengths and weaknesses of claims.  Providing opinions to parties about the strengths and weaknesses of a legal case is an “evaluative” style of mediation.18  Lawyer-mediators frequently serve as evaluative mediators, on their own initiative, at the request of the parties or at the request of the referring judge or the participating litigators.19

Commentary:  Model Standard VI.A.5 recognizes that mediators bring to their role specialized knowledge.  While noting that mixing the role of mediator and the role of another profession is problematic and requires distinguishing among roles, the Standard indicates a mediator may provide specialized “information” to the parties, but only if it does not impinge on party self-determination.20

Suggestions:  Lawyer-mediators who use legal evaluation must not be motivated by “higher settlement rates, egos, increased fees or outside pressures from court personnel, program administrators, provider organizations, the media or others.”21 

Persuading or Misrepresenting?

As a mediator communicates from one caucus meeting to the next, there are opportunities to rephrase comments to make them more diplomatic and to omit inflammatory points articulated in caucus.  There also are opportunities to dissemble about information, omit revealing comments, and give impressions that are not quite consistent with statements made.

Commentary:  Under the Model Standard VI.A.4 the mediator has a duty to promote honesty and candor.  As the Reporter’s Notes elaborate:

Lawyer-mediators know that the parties need assistance in focusing on their interests and in evaluating the litigation option.  With attorneys representing the parties, a mediator who is simply process-oriented might not add value in this context.

Suggestion:  Be mindful of the boundary between persuasion and misrepresentation.  The latter cannot be reconciled with self-determination and the Model Standards.  The lawyer-mediator also must help lawyer-advocates at mediation respect party self-determination.  This sometimes involves resisting counsel who are intent on convincing a client that settlement is either entirely unreasonable or the only reasonable option.

Mediation-Arbitration

One of the recognized ADR models is mediation-arbitration.  Rule 114.02 (a)(9) defines it as a hybrid in which the parties initially mediate their dispute; but if they reach impasse, they arbitrate any deadlocked issues.  Having the same lawyer-mediator do both is fraught with problems.23

Commentary:   Model Standard VI.A.8 cautions that a mediator may not take on an additional dispute resolution role in the same matter without informing the parties of the implications of the change in process and obtaining their consent to the change.

Suggestion:  Lawyer-mediators should normally decline to serve in the mediator role and the arbitrator role in the same matter in view of the ex parte communication permitted in mediation and prohibited in arbitration.24 

Confirming the Settlement

Although the Model Standards instruct the mediator to conduct a quality process, and identify several process features that constitute quality, the Model Standards do not provide guidelines for competently concluding the agreement that results from mediation.

Commentary:  What is the legal status of agreements entered into at the end of mediation? Are they agreements in principle or final contracts? Actions to enforce mediation agreements accounted for nearly 50 percent of the mediation cases in a recent five-year period, nearly 600 lawsuits.  This is a burdensome amount of litigation arising out of mediations.25

Suggestions:  Require counsel to come to the mediation with recommended provisions for releases and confidentiality clauses.  Include in the Agreement to Mediate something like the following:

Concluding the mediation. At the conclusion of the mediation, a written summary of the outcome of the mediation will 1) confirm that no agreement was reached, 2) recite the terms of an agreement in principle that will not be enforceable until the parties have signed a formal legal document, or 3) memorialize an enforceable final settlement agreement.26

Conclusion

For lawyer-mediators, there are many challenges.  What should the principle of party self-determination mean in the context of litigated matters with parties represented by counsel at the mediation?  Is the work of lawyer-mediators sufficiently unique so that the Model Standards do not, as a practical matter, guide the process?  And if so, is the work of lawyer-mediators going to look like a different animal than the work of other mediators?

The answers to these questions have implications for the future of the court-connected mediation movement.  It seems apropos to note that danger lies ahead, although we do not know what shape it will take or how far ahead we will find it.

Notes
1 See Introduction, Rule114-Appendix, Code of Ethics.

2 The new Model Standards are available at www.acrnet.org/pdfs/Model

StandardsofConductforMediatorsfinal05.pdf; the new Rules of Professional Conduct can be found at www.courts.

state.mn.us/lprb/conduct.html.

3 See Model Standards, Preamble.

4 See generally, Bobbie McAdoo, Nancy A. Welsh, “Look Before You Leap and Keep on Looking:  Lessons From the Institutionalization of Court-Connected Mediation,” 5 Nev. L.J. 399 (2004); James R. Coben, “Gollum, Meet Smeagol:  A Schizophrenic Rumination on Mediator Values Beyond Self-Determination and Neutrality,” 5 Cardozo J. Conflict Resol. 65 (2004); Peter N. Thompson, “Enforcing Rights Generated in Court-Connected Mediation-Tension Between the Aspirations of a Private Facilitative Process and the Reality of Public Adversarial Justice,” 38 Ohio St. J. on Disp. Resol. 509 (2004).

5 James R. Coben and Peter N. Thompson, “Disputing Irony:  A Systematic Look at Litigation About Mediation,” 11 Harv. Negot. L. Rev. __ (2006) (forthcoming).

6 Id. Part I, see also Part E.3.

7 See Model Standards, Preamble.

8 Part [3] of the Preamble to the Rules of Professional Conduct provides:

… a lawyer may serve as a third-party neutral, a nonrepresentational role helping the parties to resolve a dispute or other matter. Some of these rules apply directly to lawyers who are or have served as third-party neutrals. …

In addition, there are rules that apply to lawyers who are not active in the practice of law or to practicing lawyers even when they are acting in a nonprofessional capacity.

9 The new RPC provisions conflict with the Comment to the Rule 114 Code of Ethics on the issue of imputing a lawyer-mediator’s conflict of interest to other lawyers in the firm.  RPC 1.12 imputes a neutral’s conflict of interest to others in the firm unless affirmative steps are taken to avoid the conflict.  Compare Comment 6 to Rule II of Rule114-Appendix, Code of Ethics: “There is no intent that the prohibition established in this rule [Conflicts of Interest] which applies to an individual neutral shall be imputed to an organization, panel or firm of which the neutral is a part.”

10 Model Standard III.C.  The scope of the Rules of Professional Conduct is narrower.  RPC 1.12 focuses on two specific kinds of conflicts: subsequent representation of a mediation participant and negotiating for employment with a mediation participant.

11 Thompson, supra note 4, at 558.

12 Rule114-Appendix, Code of Ethics, Rule VI.

13 Model Standard I.B.  The duty of self-determination may be abrogated by other applicable laws or codes.  It must also be balanced against the mediator’s duty to conduct a quality process.

14 Model Standards, Reporter’s Notes, Part V.C.

15 Coben and Thompson, supra note 5, Parts A and C.

¹⁶ Id. Part A.

¹⁷ Minnesota’s Civil Mediation Act provides an action to set aside or reform mediation agreements in accord with contract law principles (Minn. Stat. §572.36).

18 Leonard L. Riskin, “Understanding Mediators’ Orientations, Strategies, and Techniques:  A Grid for the Perplexed,” 1 Harv. Neg. L. Rev. 7 (1996).

19 The ABA has rejected a prohibition on lawyer-mediators predicting the outcome of a case or an issue in the case.  See ABA Section of Dispute Resolution: Resolution on Mediation and the Unauthorized Practice of Law (2002), Comment 5.

20 Despite the Model Standards’ emphasis on self-determination, the case law suggests little legal exposure for coercive mediators.  See Coben and Thompson, supra note 3, Part E.3

21 Model Standard I.B.

22 Model Standards, Reporter’s Notes, Section V.H.3.

23 See Coben and Thompson’s discussion of this issue: supra note 5, Section I.

24 See Rule 114.10(a) and (b).

25 See Coben and Thompson, supra note 5, Part A.

26 For further information regarding termination of mediation and the tolling of statutes of limitation during mediation, see Minn. Stat. §572.33, subd. 3; see also Minn. Stat. §572.39.  The formality of written notice of termination is not observed in practice.

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CAROLYN CHALMERS is director of the Office for Conflict Resolution, University of Minnesota, and lecturer at the University of Minnesota, Hubert H. Humphrey Institute of Public Affairs.