Impartiality v. Substantive Neutrality: Is the Mediator Authorized to Provide Legal Advice?

Dispute Resolution Journal, Feb-Apr 2007 by Silveira, Mercédeh Azeredo da

The Model Standards were developed to serve as a general framework for the practice of all types of mediation. Accordingly, they serve as a guide for the conduct of mediators and as a source of information for the mediating parties. They also promote public confidence in mediation.

3 See Jamie Henikoff & Michael Moffitt, "Remodeling the Model Standards of Conduct for Mediators," 2 Harv. Negotiation L. Rev. 87, 102-103, according to whom, for the sake of the integrity of the mediation process, the mediator must at all times be free from bias toward the parties and their interests, as well as the outcome of the mediation.

4 See the Preamble to the Model Standards, supra n. 2. See also John D. Feerick, "Standards of Conduct for Mediators," 79 Judicature 314 (1996).

5 Carrie J. Menkel-Meadow et al., Dispute Resolution-Beyond the Adversarial Model 266 (Aspen 2005).

6 Moore, supra n. 1, at 327.

7 Model Standards of Practice for Family and Divorce Mediation (2001), Standard IV.A.; Society of Professionals In Dispute Resolution, (SPIDR, now called the Association for Conflict Resolution), Making the Tough Calls: Ethical Exercises for Neutral Dispute Resolvers 9 (Anne B. Thomas ed., 1991). See also Henikoff & Moffitt, supra n. 3.

8 Model Standards (2005), Standard II.B.1, supra n. 2.

9 Tom Arnold, "Mediator Ethics Issues in Mediation," C976 ALI-ABA 701, 706, about the codes or "standards" of ethics for mediators.

10 Moore, supra n. 1, at 327.

11 Id. at 327-333.

12 Model Standards (2005), Standard V.A., supra n. 2.

13 Karen A. Zerhusen, "Reflections on the Role of the Neutral Lawyer: The Lawyer as Mediator," 81 KY. L. J. 1165, 1171 (1993). Zerhusen has "instituted a practice of working with a professional who will be able to provide the court with the information desired, after an independent investigation, without compromising the mediation process." Nevertheless, I believe that even such cooperation with a professional, allowing the latter access to information disclosed during the mediation process, might influence the parties' attitude during the negotiations and thus compromise, to a certain extent, the mediation process.

14 Arnold, supra n. 9, at 710.

15 Menkel-Meadow et al., supra n. 5, at 266-67.

16 See, for example, ABA Family Law Section, "Standards of Practice for Lawyer Mediators in Family Disputes," 18 Fam. L.Q. 363, Standard 4.c (1984); Thomas Bishop, "The Standards of Practice for Family Mediators: An Individual Interpretation and Comments,"

17 Fam. L. Q. 461, 467 (1984); Ill. 17th Cir. Ct. R. 4(C) (imposing on the mediator the duty to achieve a fair agreement). 17 Loretta W. Moore, "Lawyer Mediators: Meeting the Ethical Challenges," 30 Fam. L. Q. 679, 687 (1996).

18 Id. at 688. This could include suggesting that the unrepresented party also consult with an accountant or real estate appraiser.

19 This raises the issue of whether a lawyer/mediator who gives opinions would be considered to be giving legal advice and therefore engaged in the practice of law in the jurisdiction where the mediation is being held, even though the mediator does not represent either party. If giving advice does constitute the practice of law, the next issue is whether the mediator is authorized to give advice in the jurisdiction where the mediation is being held. This is an important issue in the United States.