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?