LAWYER MEDIATORS HAVE NEW ETHICAL OBLIGATIONS

Revised Rules of Professional Conduct (RPC) that take effect in Missouri on July 1, 2007 add several new standards for lawyers who act as mediators. Rule 4-1.12 adds mediators to the list of persons who cannot represent anyone in connection with a matter in which the mediator participated "personally and substantially." An exception exists if all parties to the matter give informed consent in writing. Further a lawyer acting "personally and substantially" as mediator cannot negotiate for employment with any person involved as a party or lawyer in a matter. A lawyer serves as a third party neutral or "mediator" when the lawyer assists two or more persons who are not clients of the lawyer to reach a resolution of a dispute or other matter that has arisen between them (Rule 4-2.4.a). Rule 4-2.4.b also requires a lawyer mediator to inform unrepresented parties that the lawyer is not representing them, and when the lawyer/mediator should reasonably know that a party does not understand, to explain the difference between the role of as lawyer representing a client and the role as third party neutral. The comment states that the extent of disclosure depends on the particular parties and subject matter of the proceeding. More information is required particularly with unrepresented parties using mediation for the first time, including a warning that the attorney-client evidentiary privilege is inapplicable to mediation communication between the parties and the lawyer/mediator.

AS A LAWYER/MEDIATOR, HOW DO YOU MAKE IT CLEAR TO MEDIATION PARTICIPANTS THAT NO ATTORNEY CLIENT RELATIONSHP IS CREATED? AS A NON-LAWYER MEDIATOR HOW TDO YOU DISTINGUISH THE LIMITS OF PROVDING THE PARTIES WITH LEGAL INFORMATION AND GIVING LEGAL ADVICE?

How truthful must a lawyer be in mediation?

Revised Rules of Professional Conduct (RPC) go into effect in Missouri on July 1, 2007. Several of these rules address the candor that a lawyer must use in representing a client in mediation. The comment to Rule 4-2.4 mentions that lawyers representing clients in alternative dispute resolution process are governed by RPC., and that lawyers have an obligation of candor to both the neutral and other parties. The level of truthfulness before a "tribunal" (court or binding arbitration governed by Rule 4-3.3), however, is higher than the candor required in mediation (governed by Rule 4-4.1) For mediation (Rule 4-4.1) a lawyer is required to be truthful, "shall not knowingly make a false statement of material fact or law," but generally has "no affirmative duty to inform" other parties of relevant facts. Estimates of price or value or a party's intentions regarding settlement may or may not be fact statements, depending on the circumstances. A certain amount of "puff talk" is allowed. The lawyer must only disclose a material fact if avoiding to do so would assist a criminal or fraudulent act by the client. Before a tribunal a lawyer shall not knowingly make a false statement of any fact or law or fail to disclsoe legal authority directly adverse to the client when another party does not disclose it. Before a tribunal a lawyer may not offer evidence the lawyer knows to be false (the tolerance for puff talk is less).

HOW HAVE YOU HANDLED A SITUATION IN MEDIATION WHERE YOU THOUGHT A PARTY OR THE PARTY'S LAWYER WAS NOT TRUTHFUL?

Does Missouri need a Mediation Act?

Mediation is increasing in popularity in Missouri, yet our state has no comprehensive mediation act. Some think our state needs a statute to establish the basic standards for the mediation process. The legislature has embracing mediation in a variety of statutes as a dispute resolution process for commercial and consumer disputes, administrative and agency disputes, and judicial disputes. Would a Mediation Act provide guidance for the practice of mediation? Would an Act establish helpful standards and inform the public about issues such as the non-binding and confidential nature of the process? Would this increase the confidence of the consumers of mediation? Or are we better off with the flexibility and informality of mediation that is not specifically defined? Tell us what you think.