When the parties settle a matter at mediation, I am usually very happy about it. But, I am also conflicted because the settlement creates issues internally that I have yet to resolve.
Usually, once the parties settle, they want to document it and leave very quickly. But often, they have not brought a settlement agreement with them. They do not want to spend another hour or so drafting one; they would rather leave and document the settlement over the ensuing days. But doing so provides a party with the opportunity to change her mind and back out. Unfortunately, a settlement is not a settlement until it is signed by all concerned.
Thus, my conflict! What do I as the mediator do? Require the parties to sit and draft an agreement in those instances where they have not brought one? Or, should I provide a template (which is copied from the court’s own form) in which the “standard” provisions are provided but blanks are left for the details of the actual agreement to be filled in?
Based on my experience that once a matter settles, everyone is quite impatient to leave, I provide a template.
But, by providing a template, am I doing more than just mediating? Am I practicing law? Or mixing the roles of lawyer and mediator?
This question has been posed by many teachers in many training sessions. And, it is now the subject of an ethics opinion just issued by the ABA Section of Dispute Resolution Committee on Mediator Ethical Guidance, SODR-2010-1 (“Opinion”) (SODR_2010_1 ).
In its Opinion, the Committee focuses on a family law mediator in which a married couple seeking a no fault divorce but unrepresented by counsel, go to mediation to resolve the property, settlement, custody (there is one child) and support issues. Once they resolve these issues, they ask the mediator to prepare the agreement; they do not want to retain attorneys either to prepare the agreement or to review it.
The Committee asks: assuming the mediator is an attorney, what should she do?
The Committee answers:
“A lawyer–mediator may act as a “scrivener” to memorialize the parties’ agreement without adding terms or operative language. A lawyer-mediator with the experience and training to competently provide additional drafting services could do so, if done consistent with the Model Standards governing party self-determination and mediator impartiality. . . .”
“The Model Standards arguably permit a lawyer-mediator to provide legal information to the parties. If, however, the mediator provides legal advice or performs other tasks typically done by legal counsel, the mediator runs a serious risk of inappropriately mixing roles of legal counsel and mediator. . . .” (Id. at 2). (Emphasis original).
The Committee notes that the core issue is whether “drafting the mediated settlement agreement. . . falls within the definition of mediation. . . .” (Id. at 4).
In answering this question, the Committee notes that the definition of mediation in the Model Standards does not expressly include this task but rather defines the role of a mediator
“. . .as facilitating communication, negotiation and the voluntary decision making of the parties.” (Id. at 5). Arguably, the Committee notes, reducing the agreement to writing constitutes “facilitation” (Id.) or “an additional dispute resolution role in the same matter.” (Id. at 6).
Consequently, the Committee sees “no ethical impediment” to a “. . .mediator performing a drafting function that he or she is competent to perform by experience or training.” (Id. at 8). A mediator may simply act as a “scrivener” and/or provide legal information to the parties. (Id.) Should the mediator do more, she may be mixing her roles of attorney and mediator requiring full disclosures of the implications this creates and the full consent of all parties to proceed in this new situation.
So. . . should I still be conflicted? Probably not, because by providing a template (duplicating the court’s own form), I am providing “legal information” and merely continuing to “facilitate” the resolution of the dispute. As I do make it quite clear that the parties are free to add, delete or change any provision, I try to stay in the “scrivener” role and out of the “lawyer” role.
No doubt, some of my fellow mediators will agree with me while others will disagree and argue that I am practicing law. I invite your comment: this topic is truly a Pandora’s box!
. . .Just something to think about.