May a lawyer-mediator draft documents ancillary to a settlement, such as a divorce judgment, promissory note, or deed, not just the settlement agreement itself?

Plain-English summary

The Commission was asked whether a lawyer-mediator who has drafted a settlement agreement in a pro se case, after advising and encouraging the unrepresented parties to seek independent legal advice before signing, may also prepare a divorce judgment for the parties and other ancillary documents such as promissory notes and deeds.

The Commission concluded the lawyer-mediator may do so. Rule 3.4(h) governs lawyers who serve as mediators and provides that the role of mediator does not create a lawyer-client relationship and is not representation, and that the lawyer must not advance the interest of any party at the expense of another. The rule expressly permits the mediator to "draft a settlement agreement or instrument reflecting the parties' resolution of the matter," provided the mediator advises and encourages any represented party to consult its counsel and any unrepresented party to seek independent legal advice before executing it.

Reading that language, the Commission found nothing limiting the mediator to a single document or to a "settlement agreement" alone; the rule expressly permits drafting an "instrument," and the key criteria are neutrality and that the document reflect the parties' resolution. Because a full resolution may require an agreement plus several additional instruments, and because absent the mediator's draft the decree, note, and mortgage would otherwise be drafted by one party's lawyer and reviewed by another (perhaps requiring a return to mediation), the Commission concluded that, provided the conditions of Rule 3.4(h) are met, it is permissible for the mediator to draft such ancillary instruments as may be required to fully reflect the parties' resolution of their dispute.

Currency note

This opinion was issued in 1993, before Maine's replacement of the former Maine Bar Rules with the Maine Rules of Professional Conduct (effective August 1, 2009). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer-mediator draft more than just the settlement agreement?

A: The opinion concluded yes. It held that Rule 3.4(h) permits drafting a "settlement agreement or instrument," and read nothing in that language limiting the mediator to a single document.

Q: What conditions must the mediator satisfy to draft the ancillary documents?

A: The opinion required that the documents merely reflect the parties' resolution, that the mediator not advance one party's interest at the expense of another, and that the mediator advise and encourage unrepresented parties to seek independent legal advice (and represented parties to consult counsel) before executing them.

Q: Why did the opinion treat drafting the ancillary documents as consistent with the mediator's role?

A: The opinion reasoned that a full resolution may require several instruments, and that having the neutral mediator draft them, rather than one party's lawyer, avoids the need for the other side to review and possibly return to mediation, while the neutrality and "reflect the parties' resolution" requirements still govern.

Background and rules framework

The opinion interprets Maine Bar Rule 3.4(h), a then-recent amendment governing lawyers who serve as mediators. The rule provides that the mediator role creates no lawyer-client relationship and is not representation, that the lawyer may not advance one party's interest at the expense of another, and that the lawyer may draft a settlement agreement or instrument reflecting the parties' resolution but must advise and encourage represented parties to consult counsel and unrepresented parties to seek independent legal advice before executing it. This corresponds to ABA Model Rule 2.4 (lawyer serving as a third-party neutral).

Citations and references

Rules of Professional Conduct:

• Model Rule 2.4 (lawyer serving as third-party neutral)
• Maine Bar Rule 3.4(h), 3.4(h)(2), 3.4(h)(4)

See also

• Maine Ethics Op. 142: Mediator Disclosure of Of-Counsel Affiliation
• Maine Ethics Op. 149: Lawyer and Nonlawyer in a Mediation Partnership

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=89822

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Issued by the Professional Ethics Commission

Date Issued: December 1, 1993

Question

The Commission has been asked the following question:

When a lawyer-mediator has drafted a settlement agreement in a pro-se case (after advising and encouraging the unrepresented parties to seek independent legal advice prior to executing the agreement), is it proper for the lawyer-mediator to prepare a divorce judgment for the parties and other ancillary documents such as promissory notes, deeds, etc.?

Opinion

The Commission concludes that a lawyer-mediator operating under the constraints of Maine Bar Rule 3.4(h) may prepare documents ancillary to a settlement agreement, such as a divorce judgment, promissory note, and deed, provided such documents merely reflect the parties' resolution of the matter and all of the other conditions of Rule 3.4(h) have been satisfied.

Rule 3.4(h), a recent amendment to the Maine Bar Rules, governs the activities of lawyers who serve as full or part-time mediators and provides in pertinent part:

(2) The role of mediator does not create a lawyer-client relationship with any of the parties and does not constitute representation of any of them. The lawyer shall not attempt to advance the interest of any of the parties at the expense of any other party.

(4) The lawyer may draft a settlement agreement or instrument reflecting the parties' resolution of the matter but must advise and encourage any party represented by independent counsel to consult with that counsel, and any unrepresented party to seek independent legal advice, before executing it.

As the rule itself and the Reporter's notes make clear, a lawyer-mediator is not engaging in representation of any of the participants in mediation and may not advance the interest of any party at the expense of others. Subject to that limitation, and to the additional requirement that the parties to mediation be advised and encouraged to consult with counsel, a lawyer-mediator is expressly permitted to "draft a settlement agreement or instrument reflecting the parties' resolution of the matter." We see nothing in this language indicating that only one such agreement or instrument or only a "settlement agreement" is contemplated. On the contrary, the rule expressly permits the drafting of an "instrument," and the key criteria are found in the requirements of neutrality and that the agreement or instrument reflect the parties' resolution of the matter. The question presented presupposes that an agreement and several additional instruments may be necessary to reflect fully the parties' resolution of the matter.

Absent a draft from the mediator, the decree, note, mortgage, and the like, would presumably be drafted by a lawyer for one of the parties and reviewed by another, perhaps necessitating a return to the mediator to resolve issues unearthed by the drafting process. Provided the conditions of Rule 3.4(h) have been met, including the condition that the parties to mediation be advised and encouraged to consult with their counsel or to seek independent legal advice if not already represented, the Commission concludes it is permissible for the mediator to draft such ancillary instruments as may be required to fully reflect the parties' resolution of their dispute.