Recently, the topic of whether mediators should draft settlement agreements arose in my mediation ethics class. I suggested that if the parties have attorneys, the mediator should encourage the attorneys to draft the agreement. A student took issue stating that then the mediator loses “control”. I disagreed noting that the mediator controls the process but not the substance of the mediation.

I also noted that where the parties are unrepresented, the mediator must be extremely careful to act as a scrivener only and nothing more. The mediator may not propose terms or come up with language to make clearer what the parties want to say.   But is this really possible?

This colloquy got me thinking: Should mediators be drafting settlement agreements?  If the mediator is not an attorney- it may well be considered the unauthorized practice of law. While  Standard VI- Quality of Process in A5  of the Model Standards of Conduct for Mediators (MSC”)  provides that a mediator may provide information that the mediator is qualified to give by training and experience, the mediator may not provide” legal” advice. It is a slippery slope between giving “information”” and giving “advice”.

If the party asks the non-attorney mediator what should go into the agreement, what does the mediator say… without giving meaningful suggestions (aka legal advice)?

As authors Sharon Press and Paul  M. Lurie  note in their article “A Mediator’s Obligation to Memorialize the Agreement” in the Fall 2015 edition of the ABA Dispute Resolution Magazine,

Drafting an agreement is not a “neutral” function.  Deciding how something is worded has real consequences and has the potential to advantage or disadvantage one of the parties…. If the mediator is a lawyer, some jurisdictions may view the drafting of terms as a conflict of interest. If a mediator is not licensed to practice law or is licensed in a jurisdiction other than the one where the mediation takes place, “memorializing” the agreement has the potential to be considered…the Unauthorized Practice of Law.  (Id. at 39.)

 MSC Standard VI governing Quality of Process further provides in A 8 that a mediator shall not undertake an additional dispute resolution role in the same matter without the consent of the parties. And so, before changing roles, the mediator is obliged to fully explain the change and its implications and obtain the consent.

This though may create a conflict of interest  which is prohibited by Standard III of the MSC .  Part A provides that the mediator shall avoid a conflict of interest that may arise due to the subject matter of the dispute or due to any relationship between the mediator and any party that reasonably raises a question of the mediator’s impartiality. And as we all know ,mediators must  remain impartial and free from favoritism, bias and prejudice. (MSC, Standard II A).

Further- is the  mediator even competent  to draft a settlement agreement especially if she is not an attorney? And if the mediator  whether an attorney or not- makes a suggestion as to phrasing or inserting or deleting a term- is she overriding the self-determination  (MSC Standard I) of the parties (which the standard does allow – to override of self- determination for the sake of quality of process- A2)

In response to the above, it  will be argued that the mediator- whether an attorney or not- is merely acting as a scrivener. But is this really so? Won’t a mediator perhaps make a suggestion about the use of a particular term or clause? Especially when unsophisticated  and/or unrepresented parties are involved.  In California, mediated settlement agreements are not enforceable and are not admissible in court on a motion to enforce a settlement unless they contain certain special terminology required by California Evidence Code Section 1123. Further a court  will not retain jurisdiction to enforce a settlement that is to occur over time such as under an installment payment plan  unless again special language is inserted into the agreement. Unfortunately, many attorneys are unaware of these pitfalls and so I have pointed out these provisions to them. Have I switched roles without informing the parties and gaining their consent? Am I practicing law? Am I being impartial? Creating a conflict of interest by advantaging one party over the other?  Or am I doing my job as a mediator to ensure that the agreement remains durable and enforceable?

I would prefer to think that I am doing my job, but these  issues do  greatly concern me. There seems to be no clearcut answers—just  a lot of gray  which is typical of most ethical issues!

…. Just something to think about.

 

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