Comments: Mediation and the Unauthorized Practice of Law

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Dana , Sanford   08/31/11
My prior comment refers to the comment of Caroline Loesch who stated that attorneys are not able, ethically, to mediate.

Dana , Sanford   08/31/11
Mediation and UPL
I disagree strongly with your comment that lawyers cannot be mediators, ethically. Your point is stated as a conclusion without any rationale or reasoning. I'm unaware of any ethical issue with an attorney being a mediator.

Susan Cameron, La Mirada CA  susan@rcameron.com     05/24/02
Good step!
This is a good and well-reasoned step in distinguishing mediation from the practice of law, while properly acknowledging the overlap. As methods of dispute resolution become more and more sophisticated, more distinctions will be needed. This is an exemplary step in the right direction. It does an excellent job of defining terms and taking unnecessary roadblocks out of the way. Including examples of state codes that are too limiting is both courageous and helpful. There are more areas where professional responsibility codes need to be updated to deal with emerging models of dispute resolution, particularly those less adversarial than those assumed by current professional responsibility codes for lawyers. This resolution provides a helpful model for dealing with the more difficult and controversial issues that will inevitably continue to arise.

T.J. HANRAHAN, GLEN ROCK NJ   05/24/02
ABA RESOLUTION ON MEDIATION
THE ABA SECTION HAS DECIDED THAT THE PRACTICE OF MEDIATION IS NOT THE PRACTICE OF LAW, AND I AGREE.

Steven L. Schwartz, Southfield Mi  slsadrs@aol.com     05/13/02
International Academy of Mediators Resolution in Support
The IAM Board of Governors, at its November 2002 (Boulder, Colorado) Conference and Board Meeting, has unanimously enacted a Resolution in support of the DR Section's Resolution on Mediation and the Unauthorized Practice of Law. The IAM believes this is a major step forward and the DR Section leadership is to be congratulated on taking this very important action. Steven L. Schwartz Immediate Past President, IAM

Brian Weber, Aiken SC  bfweber64@hotmail.com     03/06/02
USE ON NON-ATTORNEYS FOR MEDIATION
Although there are legal exceptions, the practice of law is, and should be, confined to attorneys. But mediation and litigation are distinct in that litigation deals in the formalities of law that are necessary to protect the rights of the involved entity. For litigation, a qualified, informed person (attorney) is and should be utilized. However, mediation was designed to be a voluntary process by which a neutral brings the parties together for a mutually agreeable settlement. As in Arbitration, the involvement of attorneys in mediation has, by design, complicated the process so as to neccesitate the use of an attorney, a self serving process. Those cases where the parties desire to employ an attorney due to the technical nature of the issue or due to the monatary liability involved, should be allowed. But, any party who wishes to use a non-attorney to mediate private, voluntary settlements, should be allowed to do so. If this fails, attorneys may be called in. In any case and regardless of the use of non-attorneys for mediation, there will be no shortage of mediation cases for which attorneys will be asked to handle.

Caroline Loesch, Sarasota FL  get2agreement@aol.com     02/19/02
Lessening the confusion
The confusion and ethical questions might be lessened, if attorneys were discouraged from practicing as ‘mediators’, rather than as ‘arbitrators’. The idea of Mediation does not necessarily involve the judicial system, as does arbitration (Generally). Mediators cannot be arbitrators easily, without formal education in the legal field. Mediators are limited in some ways, that attorneys are not. It seems logical to divide the professions so the public would not have any reason to believe a mediator is practicing law. Mediation is a process to use before hiring an attorney and petitioning the courts. These cases that cannot be settled by mediation are ready for litigation. (The cases that are ripe for Mediation, are ethically unfit for an attorney to handle anyway). Clients are turned away frequently. They should be directed to try mediation, when attorneys cannot help. Attorneys can use a mediator or an arbitrator, depending on their clients wishes, if settlement looks promising. Again, the distinction is there, between arbitration and mediation. By separating the two professions; meaning a mediator cannot give legal advice and a lawyer should not mediate, people with disputes will naturally filter themselves to the proper arena. When ‘step one’ doesn’t work—you go to ‘step two’. Just a thought.

Ron Kelly, Berkeley CA  ronkelly@ronkelly.com     02/19/02
Bravo!
My profound thanks to all who worked on this very clear and thoughtful policy statement. It makes me proud to be a member of this section. There are many organizations and individuals working to form the laws and rules that will shape the way our field is incorporated into our society. I hope they spread this statement widely and reference it often. Ron Kelly, Berkeley