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Balancing mediation with rules on unauthorized practice.

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Alternatives
DIGEST
STATE ADR
Virginia’s court system has been a leader
on issues involving mediator credentialing,
and its work has influenced other
jurisdictions. Forced to deal with a large
population of nonattorney mediators,
the state’s court system has looked long
and hard at the intersection of mediation and the practice of law. The result
is that Virginia lawyers, along with
nonlawyer neutrals, are now o n notice
as to exactly what they can and cannot
do when they mediate. Geetha Ravindra,
director of the Virginia Supreme
Court’s dispute resolution services
department, reviews the state’s efforts,
and summarizes its sure-to-be-influenPage 2 1
tial conclusions. ........................
ADR BRIEFS
Standardized procedures that resolve
disputes over Internet names get their
first test, and the ADR numbers from
PricewaterhouseCoopers’annual law
department spending survey. ....Page 23
ANNUAL INDEX
The Index to Volume 17 is a comprehensive subject and author listing of
every article that appeared in Altcmarives in 1999. ............................
Page 27
DEPARTMENTS
CPR News ................................
Page 22
ADR Briefs ............................... Page 23
Cartoon by Cullum ..................Page 23
CPR 20 Past, 20 Future ..........Page 2 4
Online Info ..................Pages 2 6 814 0
PULL-OUT FEATURE
CPR INSTITUTE FOR DISPUTE RESOLUTION WWW.CPRADR.ORG
VOL. 18, NO. 2 FEBRUARY 2000
Balancing Mediation with
Rules on Unauthorized Practice
BY GEETHA RAVINDRA
Following a series of communications between the Office of the Executive Secretary
In Virginia, it is generally believed that people
and the Virginia State Bar, a conference was
from all backgrounds have a wealth of h o w l held in 1997 to provide mediators with inedge, experience, and skills they can bring to
formation regarding what constitutes the unmediation. There currently are 1,000 certiauthorized practice of law and on how to write
fied mediators who come from a variety of
mediated agreements for parties without viodisciplines including law, social work, counlating any UPL rules. This conference unforseling, and education.
tunately heightened mediator anxiety and
But that positive setting for alternative disexacerbated tensions between attorney and
pute resolution set up a clash. In 1996, a Virnonattorney mediators.
ginia Circuit Court held for the first time that
In an effort to explore this area in greater
a nonlawyer mediator had engaged
in
the
un. .
depth and provide clearer inforauthorized practice of law by
mation to mediators on these
providingmediation clientswith
complex ethics and practice
legal options, as well as developquestions, the Department of
ing a legal instrument on their
STATE
Dispute Resolution Services of
behalf. [Editor:note: See Geetha
the Supreme Court of Virginia
Ravindra, “When Mediation BeADR
received a Fall 1998 grant from
comes the Unauthorized Practice
of Law,” 15Alternatives94 (July/
the State Justice Institute-an
Alexandria, Va., nonprofit orAugust 1997).]
ganization set up by Congress
For Virginia mediators, this
to study ways to improve state justice syscase raised important questions regarding
tems -to develop a set of guidelines to assist
whether mediation constitutes the
mediators in avoiding the practice of law
practice of law;
when mediating disputes.
how to empower disputantsto make their
The resultingvirginia UPL Guidelinesare
own decisionswithout giving legal advice;
the
first comprehensive resource on the issue
how to meet the needs of disputantsand
of mediation and the unauthorized practice
provide the services they request withof law. While they focus on Virginia’s UPL
out engaging in the unauthorized pracrules and standards of ethics, practitioners in
tice of law-referred to in this article as
the UPL-as a nonlawyer, or dual repother states may find the guidelines informaresentation as a lawyer mediator; and
tive, because many already are wrestling with
similar questions, and they are sure to conhow to provide a convenient, perhaps
one-stop, alternative to adjudication
tinue to arise.
without engaging in either the unauThe UPL guidelines project began with
thorized practice of law or dual reprethe appointment of Prof. Michael R. Smith
sentation.
of Virginia Commonwealth Universityas lead
researcher and reporter, and the creation of a
The author is director of the Department of Dispute
Resolution Services i n the Administrative Offlce of
UPL committee including judges, lawyers,
the Supreme Court of Virginia i n Richmond. She was
mediators, and Virginia State Bar staffers.
a member of the committee formed that helped write
Smith studied existing information on methe state‘s unauthorized practice of law guidelines,
which are discussed i n this article.
(continued on page 38)
Balancing Mediation with Rules on the
Unauthorized Practice of Law in Virginia
(continued from front page)
diation and the UPL around the country and
surveyed more than 150 bar associations. He
also reviewed the various tests courts use to
determine when an activity constitutes the
practice of law.
Smith then studied Virginia’s Supreme
Court Rules, legal ethics opinions and UPL
committee opinions, statutes, and ethical
standards that address this issue. Only North
Carolina that had engaged in a similar study
of mediation and UPL. Furthermore, neither the Virginia State Bar nor the Virginia
Legislature had addressed the question specifically of what constitutes the practice of
law in the mediation context.
MEDIATION I N
THE CONTEXT OF UPL
Mediation is a process for resolving disputes,
which already may have ripenedinto suits
by the time they reach mediation or will end
up in litigation if they are not resolved by
mediation. In either case, parties often invoke legal norms in an effort to resolve disputes.
So mediators may be called upon to provide law-related information to the parties or
to provide legal evaluationsof the parties’ positions. Or mediators may find it w e l l to ask
reality-testingquestions of the parties that implicate legal issues. And if a settlement is
reached, the mediator may be asked or may
take it upon himself or herself to assist the parties in committing the agreement to writing.
State bar associations throughout the
country, and the CPR-Georgetown Commission on Ethics and Standards in Alternative Dispute Resolution, have recognized that
mediation is a law-related activity. Lawyers
who practice mediation typically are subject
to professional responsibility rules that govern attorney conduct in their respective
states. Depending upon how the practice of
law is defined in a jurisdiction, a typical
mediation session may involve a range of
activities by the mediator that approaches
the practice of law. The two most common
categories of mediator activities that may
involve the practice of law are:
*The application of law to facts, and
Drafting settlement agreements that
may be viewed as legal instruments.
LEGAL INFORMATION
OR ADVICE?
Supreme Court of Virginia Rule Part 6, 0 I
(B)(1) states that an attorney-client relationship exists and one is deemed to be practicing law whenever “one undertakes for
compensation, direct or indirect, to advise
another, not his regular employer, in any matter involving the application of legal principles to facts or purposes or desires.” The
rule, however, doesn’t prohibit giving legal
information to disputing parties, nor does it
Responsibility for Certified Mediators also
prohibit mediators from giving legal advice.
In fact, the ethical standards require mediators to inform the parties in writing, before
the mediation begins, that the mediator does
not provide legal advice. This provision reflects the requirements of Code of Virginia
0 8.01-576.12 relating to court-referred
cases, which states that a court shall set aside
a mediated settlement agreement upon a
showing of misconduct by the neutral. As
defined in this code section, misconduct “includes the failure of the neutral to inform
Lawyer-mediators
giving advice during a
mediation risk violating rules
against dual representation.
apply to mediators who are not being compensated (either directly or indirectly).
The crux ofUPL Rule Part 6 , s I(B)(l) is
its prohibition against nonattorneys applying
general legal principles to specific facts, purposes, or desires and then communicating legal advice to other persons. The term “legal
advice” has not been precisely defined in Virginia, much less in the mediation context.The
UPL guidelines committee concluded after
almost a year of discussion, that at a minimum the following would appear to constitute legal advice in the mediation context:
A mediator provides legal advice
whenever, in the mediation context, he or she applies legal principles to facts in a manner that (1)
predicts a specific resolution of a
legal issue or (2) directs, urges, or
recommends a course of action by
a disputant or disputants.
Like UPL Rule Part 6 $I(B)( l), the Virginia Standards of Ethics and Professional
the parties in writing at the commencement
of the mediation process that: (i) the neutral
does not provide legal advice. ... ”
Although an attorney qualified to practice law in Virginia and serving as a mediator could not be charged with the
unauthorized practice of law for giving legal
advice during mediation, the attorney-mediator would violate mediator ethics if he or
she gave legal advice, and any resulting settlement agreement could be challenged and set
aside by a court on the ground of mediator
misconduct. The attorney also would be subject to professional discipline by the Virginia
State Bar for violating Rule 2.1 1 of the Virginia Rules of Professional Conduct, which
prohibits a lawyer-mediator from giving legal advice during mediation. Finally, a lawyer-mediator who gave legal advice to one
or both of the parties during mediation may
have engaged in dual representation in violation of Rule l .7.
(continued on following page)
(continued from previous page)
Virginia’s UPL guidelines state that a mediator may provide legal resource and procedural information to disputants. Providing
copies of statutes or reference information is
permissible. Mediators may make statements
that generally declare the state of the law on
a legal topic and may ask reality-testingquestions that raise legal issues so long as they do
not predict resolutions of legal issues or direct decision-making.
A mediator also may inform the parties
about the mediator’s experiences with a particular court or type of case if it is information obtained through personal observation
or empirical research. Mediators may inform
the parties as to the legal ramifications of a
mediated agreement based on the Virginia
Code, but not advise the parties as to the
agreement’s enforceability. A mediator may
not make specificpredictions about the resolution of legal issues or direct a party’s decision-makmg.
A more comprehensive explanation of
these points, along with examples, may be
found in the complete guidelines.
PREPARING MEDIATED
AG RE EM E NTS
Supreme Court of Virginia Rule Part 6, §
I(B)(2) provides that a person is practicing
law whenever “one, other than a regular employee acting for his employer, undertakes,
with or without compensation, to prepare
for another legal instruments of any character, other than notices or contracts incident
to the regular course of conducting a licensed
business.”
Yet despite this Supreme Court rule prohibiting lay people from preparing legal instruments, the Virginia mediation statutes
refer to the preparation of written agreements by nonattorney mediators. In defining the various terms used in the dispute
resolution chapter of the Code ofVirginia,
§ 8.0 1-576.4 states that “‘dispute resolution services’ includes screening and intake
of disputants, conducting dispute resolution proceedings, drafting agreements, and
providing information or referral services.”
[Emphasis added.]
Furthermore, § 8.01-576.1 1 contemplates that written agreements would emerge
from mediation sessions by providing that
such agreements are “enforceable in the same
manner as any other written contract.”
Finally, in defining misconduct by
neutrals, 4 8.01-576.12 states that upon the
motion of a party, a court “shall vacate a
mediated agreement reachedin a dispute resolution proceeding” if the neutral fails to inform the disputants in writing of certain
specified information. [Emphasis added.]
Consequently, the Virginia mediation
statutes appear to authorize the preparation
by mediators ofwritten agreements that may
be enforceable as contracts. But contracts are
legal instruments, and the Virginia Supreme
Court UPL rules prohibit nonattorneys from
drafting legal instruments. The Virginia State
Bar has authorized attorney-mediators to act
as scriveners in committing mediated agreements to writing.
The State Bar’s Legal Ethics Committee,
however, has cautioned attorney-mediators
that if they provide agreement-writing services beyond those of a scrivener, then they
have engaged in the practice of law, which is
prohibited in the mediation context by Rule
2.10(e) of the new Virginia Rules of Professional Conduct. This rule states that “a lawyer who serves or has served as a third party
neutral may not serve as a lawyer on behalf
of any party to the dispute.” If an attorneymediator steps outside of the role of a scrivener and draft a contract for the disputing
parties, he or she would be acting as a lawyer
for the parties, which is prohibited by Rule
2.1 O(e).
instruments in which they include legally
operative terms not requested or contemplated by the parties during the mediation
process. Allowing mediators to prepare
written agreements for the parties facilitates the efficient resolution of disputes
and minimizes the costs to the parties, who
may not desire or be able to afford their
own attorneys.
Acting as a scrivener, a mediator may prepare settlement agreements and memorandums of understanding for the parties. The
particular form of an agreement does not
necessarily determine its enforceability as a
contract. Mediators in Virginia may simply
copy the agreement as dictated by the parties or by choosing particular words or
phrases to include in the agreement so long
as the parties indicate that the language chosen by the mediator accurately reflects their
desires.
A mediator should not add provisions to
an agreement beyond those specified by the
disputants. Where a statute or court requires
that a certain provision be included in a written agreement, the mediator has not engaged
in the practice of law.
Mediators may use court-approved forms
when preparing a mediated agreement, although generally, the preparation of court
orders is considered the practice of law. It is
Acting as a s c r ive ne r,
a mediator may prepare settlement
agreements and memorandums of
understanding for the parties.
The UPL Committee also concluded that
the Virginia mediation statutes, particularly
§ 8.0 1-576.4, authorize nonattorney mediators to prepare written agreements for disputing parties so long as they, like
attorney-mediators, limit their drafting services to those of a scrivener. This
harmonization of the UPL rules and the
mediation statutes gives mediators the flexibility to assist the parties in committing
their mediated agreements to writing but
stops short of allowing mediators to draft
standard practice in many Virginia courts to
provide agreement forms that contain signature lines to either order a case’s dismissal
pursuant to the agreement or to convert the
agreement into a court order. This practice,
however, is supervised by courts and carries
!B
less risk to the public.
For more information on this project or to request a copy of the Guidelines, contact author
Geetha Ravindra at 804-786-6455.
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