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Impartiality v. Substantive Neutrality: Is the Mediator Authorized to Provide Legal Advice?
Dispute Resolution Journal, Feb-Apr 2007 by Silveira, Mercédeh Azeredo da
* managing doubt (encouraging doubt as a way to moderate a party's position); and
* deciding when to convey offers and counteroffers, 11 among other activities.
Even if no agreement is reached at the end of the mediation, the mediator is not freed from the duty to remain impartial and must keep confidential whatever was learned during the proceedings. If that were not the case, the parties would be unlikely to negotiate freely and openly during mediation proceedings. They would be concerned about protecting their legal positions in future court or administrative proceedings.
In order to ensure the integrity of the mediation process, the AAA/ABA Model Standards of Conduct for Mediators provide that "a mediator shall maintain the confidentiality of all information obtained by the mediator in mediation, unless otherwise agreed to by the parties or required by applicable law."12 One commentator has also pointed out that "the mediator must not be involved in any process after the mediation [has] ended which would require the mediator to evaluate the parties or to reveal information obtained during mediation."13
Does Impartiality Mean Substantive Neutrality?
Some scholars and mediators infer from the term "party self-determination" that the parties are free to reach the agreement into which they desire to enter, whether "fair or not, in accord with the applicable law or not, [and] in accord with true facts or not."14 These commentators conclude that mediators bear no responsibility for the fairness of a mediation settlement. They maintain that a mediator merely acts as "a host and chair," and as a "master of communication and translator."15
But others see more than party self-determination as the goal of mediation. They identify other important goals, including fairness of the outcome. 16 This is especially so in the family mediation context where there is often greater economic power on one side. One commentator has pointed out that "lawyer-mediators may be more likely to experience greater tension between the need to preserve self-determination of the parties and the desire to intervene more directively to achieve a legally fair and equitable result."17
What should a mediator do when an unrepresented party heads down a path toward an unfeasible, unfair, or inequitable resolution of a disputed matter, toward an agreement that could adversely affect that party's legal rights and obligations? In such circumstances, practitioners and scholars agree that in order for the parties to make an informed decision, the mediator may recommend that unrepresented parties seek independent legal counsel and advice from "other professionals on technical aspects of the dispute."18 What would the solution be if all parties were represented by counsel? Should the mediator's views on the parties' positions or the proposed settlement or both be shared with the parties, whether they have legal representation or not?19
State rules on this issue vary. Some states allow the mediator to give legal advice, but only in the presence of a lawyer.20 Other states prohibit mediators from giving legal advice altogether but allow them to define legal issues in the presence of all parties.21
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