Advice is seldom welcome; and those who want it the most always like it the least.
Philip Dormer Stanhope,
Earl of Chesterfield
Maybe the good Earl was thinking of mediators and the rock-and-the-hard-place situations in which they too often find themselves.
A lawyer is a lawyer all of his or her life, and it’s damned hard not to be one while serving as a mediator. The attorney/mediator faces a dilemma in many mediations. On the one hand, he/she has a general knowledge of the law and often recognizes when one side or the other misrepresents a legal principle; on the other hand, the mediator is loathe or unable to offer legal advice to correct the misrepresentation.
Rule 10.090 PROFESSIONAL ADVICE, provides that “[w]hile a mediator may point out possible outcomes of the case, under no circumstances may a mediator offer a personal or professional opinion as to how the court in which the case has been filed will resolve the dispute.” This Rule would appear to leave considerable room for advice that does not necessarily direct itself to the outcome of the case.
A Committee Note to Rule 10.060 SELF-DETERMINATION merely confuses the issue in stating “[w]hile a mediator has no duty to specifically advise a party as to the legal ramifications or consequences of a proposed agreement, there is a duty…to advise the parties of the importance of understanding such matters…” (Emphasis added)
The Note intimates that the mediator can ethically offer legal advice. I submit, however, that the comment may have been made in the context of a mediation in which neither of the parties are represented by counsel, such as in family mediations. Even in those circumstances, the line between mediator and arbitrator becomes fuzzy.
Florida Dispute Resolution Center’s Mediator Qualifications Advisory Panel has consistently advised against mediators giving legal advice. In its January 7, 1997, Opinion responding to Question 96-003, the Panel states: “Implicit in [Rule 10.090(b)] is that a mediator shall not provide the advice him or herself. One of the reasons a mediator may not provide advice is that advice inevitably will favor one party over another and thus, by its very nature, advice cannot be provided while maintaining impartiality.”
As a practical matter, a mediator treads on very thin ice if he or she undercuts the authority if not the professional integrity of a party’s attorney by offering unsolicited legal advice. Even when asked by counsel for such advice, the mediator is placed in a troublesome position, since he or she cannot know whether counsel is really only seeking concurrence of counsel’s opinion or, at the least, seeks advice helpful to the client.
The better and safer practice is to decline offering legal advice—a function, after all, of the clients’ attorneys, not the mediator—and, if it appears that significantly bad advice from counsel is floating in the air, to ask counsel questions that will serve to elicit clarification of his or her legal opinion—and, occasionally, a change of heart. This also might involve caucusing with counsel for both sides, apart from their clients, reminding them that legal issues cannot be resolved in mediation, and urging them to reconcile their opposing legal opinions at least for the duration of the mediation in order to move the process along, hopefully toward a settlement.
Under any circumstances and with the best of motives, the proffering of legal advice by the mediator can set the mediator on a course of partiality. Motions to dismiss, summary judgment and directed verdict are the places to resolve legal issues. The mediation proceeding is best suited to resolving factual differences and to addressing the practical considerations of protracted litigation and trials.