Can a lawyer acting as a neutral mediator in a domestic dispute draft a document setting out the understanding the parties reached?
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This page answers the general question as of 1996. Ezel answers yours: whether it's allowed on your facts, under the current Michigan Rules of Professional Conduct, with citations.
Plain-English summary
A lawyer serving as a neutral mediator in domestic dispute mediation asked whether it was proper to draft documents memorializing the understandings the parties reached at the mediation. No facts suggested any party was a former or current client of the lawyer.
The opinion concluded the lawyer may do so. It framed family mediation, citing the ABA Standards of Practice for Lawyer Mediators in Family Disputes, as an informal consensual process in which the lawyer helps family members resolve disputes, and stressed that the lawyer must be careful to inform the participants that the lawyer cannot and does not represent either party (citing RI-256). On tentative resolution, the opinion concluded it is not inappropriate for the mediator to suggest the parties memorialize their understandings in writing, and the neutral mediator is not per se prohibited from preparing that document, because MRPC 1.7 and 2.2, which concern the lawyer's role with clients, are not implicated (in accord with Arizona Op 96-01). The lawyer-mediator should assure that unrepresented parties have the opportunity to obtain independent counsel to evaluate any tentative agreement (RI-256; ABA Standard VI D).
The opinion drew a line at implementation: a lawyer-mediator is not per se prohibited from preparing pleadings to implement the memorandum of understanding, but any such activity would be construed as legal services rather than mediation, and would invoke MRPC 1.7, 2.2, and other ethics duties. It cross-referenced RI-235 for the analysis when a party-nominated mediator is asked to become a party's advocate.
Currency note
This opinion was issued in 1996, before later amendments to the Michigan Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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 the agreement the parties reached?
A: Yes. The opinion concluded a neutral lawyer-mediator may draft documents memorializing the parties' understanding, since MRPC 1.7 and 2.2 are not implicated where there is no client.
Q: What must the mediator make clear to the parties?
A: The opinion concluded the lawyer should inform the participants that the lawyer cannot and does not represent either party (citing RI-256).
Q: Should unrepresented parties get independent counsel?
A: The opinion concluded the lawyer-mediator should assure that unrepresented parties have the opportunity to obtain independent counsel to evaluate any tentative agreement.
Q: Can the lawyer-mediator also draft the pleadings to carry out the agreement?
A: The opinion concluded that doing so is not per se prohibited, but it would be legal services rather than mediation and would invoke MRPC 1.7, 2.2, and other ethics duties.
Background and rules framework
The opinion interpreted MRPC 1.7 and 2.2 (Model Rules 1.7 and 2.2, the latter the former lawyer-as-intermediary rule), concluding neither is implicated when the lawyer acts as a neutral mediator with no client. It relied on RI-256 and RI-235, the ABA Standards of Practice for Lawyer Mediators in Family Disputes (Standard VI D), and Arizona Op 96-01.
Citations and references
Rules of Professional Conduct:
- MR 1.7 / MRPC 1.7 (conflicts; not implicated absent a client)
- MR 2.2 / MRPC 2.2 (lawyer as intermediary; not implicated absent clients)
Other opinions cited:
- Michigan RI-256: a neutral must make clear it represents no party
- Michigan RI-235: when a party-nominated mediator is asked to advocate
- Arizona Op 96-01: lawyer-mediator drafting the parties' agreement
See also
- Mich Ethics Op. RI-256: lawyer-neutral dealing with self-represented parties
- Mich Ethics Op. RI-235: partisan mediator later representing the selecting party
- Mich Ethics Op. RI-265: a mediator may not later arbitrate the same matter
Source
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
RI-278
August 12, 1996
SYLLABUS
A lawyer acting as a mediator in a domestic dispute resolution process may draft documents which purport to represent the understanding reached between the parties.
References: MRPC 1.7, 2.2; RI-235, RI-256.
TEXT
A lawyer, who acts as a neutral mediator in domestic dispute mediation, inquires about the propriety of drafting documents purporting to represent the understandings reached by the parties at the mediation. No facts are presented which expressly or impliedly suggest that any of the parties to the mediation are former or current clients of the inquirer.
Generally, organized bar groups have promoted the concept of alternate dispute resolution as a viable option for disputing parties, compared to the often more expensive and protracted civil proceeding. To facilitate those programs, lawyers have routinely offered to participate in the programs as neutral mediators. The American Bar Association has established Standards of Practice for Lawyer Mediators in Family Disputes to provide guidance to lawyers assuming the role of mediator in domestice relations matters. The ABA Standards define family mediation as an informal consensual process through which a lawyer helps family members resolve their disputes.
While acting as a neutral mediator, a lawyer must be vigilant about the ethical constraints which would prohibit the expansion of the lawyer's limited role as mediator. To the extent that parties might confuse the lawyer's traditional role as an advocate with the lawyer's neutral role as mediator, the lawyer should be careful to inform the participants that the lawyer cannot and does not represent either party to the mediation. RI-256.
Upon tentative resolution of the dispute, it is not inappropriate for a mediator to suggest that the parties memorialize their understandings in a written document. The lawyer, in the role of neutral mediator, is not per se prohibited from preparing the document. MRPC 1.7 and 2.2, which relate to the lawyer's role with clients, are not implicated. In accord, Arizona Op 96-01. The lawyer mediator should assure that unrepresented parties have an opportunity to obtain independent legal counsel for purposes of evaluating any tentative agreement that they might reach through the mediation process. RI-256. In accord, ABA Standard VI D, "[w]hile a mediator cannot insist that each participant has separate counsel, they should be discouraged from signing any agreement which has not been so reviewed."
The lawyer mediator is not per se prohibited from preparing pleadings for purposes of implementation of the memorandum of understanding. However, any activity in this regard would be construed as legal services by a lawyer, not mediation, and would necessarily invoke MRPC 1.7, 2.2, and other ethics duties.
For an analysis of ethical duties applicable when a party-nominated mediator is asked to become an advocate of a party, see RI-235.
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