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Is mediation the practice of law.

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to the High Costs of Litigation
Vol. 14, No. 5 May 1996
CPR Institute for Dispute Resolution
ADR Toolbox. When parties reach an impasse in mediation, they often
want the mediator to evaluate the merits of their case. The potential
downside is a loss of perceived neutrality. Marjorie Corman Aaron, executive director of the Program on Negotiation at Harvard Law School, offers
strategies mediators can use to reduce the risks of evaluation and increase
the parties’ receptiveness. .................................................................
Page 62
ADR Ethics. How we answer the question of whether
mediation is the
practice of law can affect issues of confidentiality, malpractice liability, and
quality control, writes Carrie Menkel-Meadow, a professor at Georgetown
and UCLA Law Schools. One popular approach to the issue treats the
absence of a lawyer-client relationship as the governing test. Ms. Meadow,
who chairs the CPR Commission on Ethics and Standards of Dispute
Resolution Practice, applies a different approach. ..........................
Page 57
Lawyer Fined. Afederal court in New York has imposed sanctions against
a lawyer for violating confidentiality provisions of the court’s mediation
program. Jarril F. Kaplan, of Snell & Wilmer, analyzes the case, in which the
court accused the lawyer of trying to undermine mediation. ......... Page 58
ConstructionADR. New York’s highest court has upheld an ADRclause
in a construction contract between a private contractor and a public
authority, even though it didn’t provide for judicial review. The contract
also designated one of the authority’s own employees to decide all disputes
under the agreement. ........................................................................
Page 59
Settlement Obligation. The Fifth U.S. Circuit Court of Appeals,
calling a lower court decision “most inappropriate,” overturned sanctions
against two assistant U.S. attorneys for not offering a cash settlement in a
tort case. A local rule required parties to make a “good-faith effort” to
settle as early as possible. But the court said that only required attorneys
to attend the settlement discussions with an open mind, not to make any
specific offers. ...................................................................................
Page 59
Punitive Damages. Trial lawyers concerned about punitive damages
may be overrating the risks, according to a recent study by the RAND
Institute for CivilJustice. The study can help lawyers and their clients make
decisions about whether to settle or sue. ......................................... Page 67
............................... Page 65
......... Page 66
Quote o f the Month
............. Page 65
....................... Page 68
Drawing by Chase
ADR Video
Is Mediation
The Practice
Of Law?
By Carrie Menkel-Meadow
One of the hottest questions in ADR
ethics is whether mediating a case is
the “practiceof law.”Ifit is, (and I think
it is), do we require mediators to be
lawyers, even if some aren’t suited to
the task, while excluding people who
aren’t lawyersbut may be excellent mediators? If it isn’t, what rules should
govern its use?
Practitioners, drafters of standards
and rules, and ethics scholars have differed on this issue. Productive as the
debate may be long-term, it might lead
to liability issues and problems enforcing quality and standards.
When mediation was still new, regulators and liability experts seemed to
ignore this dispute resolution method
as a serious pursuit. Some malpractice
insurance carriers wouldn’t even cover
it. Mediation isn’t the “practiceof law,”
they argued, and doesn’t fall easily into
another category of professional activity, like psychology, social work, orjudging. Ethics codes of the various “related”
professions did not explicitly cover
mediation. Nor did the lawyers’ code
of professional responsibility provide
(continued on page 60)
Carrie Menkel-Meadow, who chairs the CPR
Commission on Ethics and Standards of Dispute Resolution Practice, is a professor at
Georgetown and UCLA Law Schools and the
codirector of the UCLA Centerfor Conflict Rese
lution. Another version of this article appears
in the March/Apnl issue of NlDR News.
60 Alternatives
Vol. 14, No. 5 May 1996
CPR Institute for Dispute Resolution
Mediators Who Predict Results Are Practicing Law
of us in the field are concerned about
(continuedfrom first page}
any guidance for a profession patterned
access to mediation-expanding the
pool of capable mediators, and the
on adversarial, zealous partisanship.
choices for consumers of mediation
How we answer the question, “Is
mediation the practice of law?”willdeservices. Therefore, we would like to
define mediation broadly, so that it
termine the standards by which we
judge the work-whether we rely on
doesn’t involve the practice of law. To
legal ethics codes, or those of “coordithat end, we argue that mediation in
nate” professions. Avariety of different
its “pure”form of facilitation does not
organizations have promulgated rules
involve law, but communication and
on the subject. Some legislatures have
other skills.
tried to impose liabilitystandards,while
One example of this approach is a
courts tend to address liability issues on
proposal by the District of Columbia
a case-by-case basis.
Bar to clarify and revise the local ethics
If mediation is the practice of
law (or as Geoffrey Hazard has
argued, it is the “anci1lary”practice of law),we must refer to lawyers’ ethics codes. Trouble is,
they provide little, if any, guidance about issues like: confidentiality (among parties and with
One problem
mediators), conflicts of interests,
fees, and unauthorized practice
(in co-mediating, for example,
with a non- lawyer). The CPR
Commission on Ethics and Stanrule dealing with the unauthorized
dards is studying mediation and thirdpractice of law. The proposed amendparty practice and preparing an analysis
of how the Model Rules of Professional
ment expressly exempts mediation beConduct for lawyers are problematic for
cause, “ADR services are not given in
mediation practice issues.
circumstances where there is a client
The risk, as with many ethical issues,
relationship of trust and reliance and
is that thedesired solution to one prob
it is common practice for providers of
lem determines the conclusion. Most
ADR servicesexplicitly to advise partici-
“The risk, as with many
ethical iSSUeS, is that
the desired Solution to
the conclusion.”
pants that they are not providing the services of legal counsel,”Proposed Clarification and Revision of District of
Columbia Court ofAppeals Rule 49 Concerning the Unauthorized Practice of
Law, Rule 49 Committee of the District
of Columbia Bar (at page 16).
Lawyer-Client Relationship
This approach to the issue, one of
the more popular ones, treats the absence of a lawyer-client relationship
as the governing test. It allows a
broad range of individuals to mediate, including non-lawyers and
lawyers who are not members of
the local or state bar.
Another route to the same
result is to simply define away the
problem. A report two years ago
to the Tennessee Sumerne
Commission on Dispute Resolution by the state Board of Professional Responsibility illustrates
this approach. It recommends a
rule of professional responsibility that says: “A neutral shall give
legal opinions to a party only in the
presence of all parties, providing, however, that a prediction of litigation
outcomes by a lawyer acting as a dispute resolution neutral shall not for
purposes of this section constitute the
provision of a legal opinion.”
Scholars have split on interpretations
DISPUTE RESOLUTION has become a leader in
developing uses of private alternatives to the costly
litigation confronting major corporations and public
entities. The membership of CPR, a nonprofit organization, consists of more than 500 large companies,
leading U.S. law firms, academics and judges.
BENEFITS AND SERVICES, including research
access to CPRs unique ADR database; training and
counseling; a complete library of ADR practice tools
and model procedures; and semi-annual conferences
for CPR Sustaining Members.
Would you like further information about CPR membership? If so, please complete the following form:
Return to: Elizabeth McGahan, Vice President-Membership
and Administration, CPR Institute for Dispute Resolution, 366
Madison Avenue, New York, NY 10017. Telephone: (212) 9496490. Fax: (212) 949-8859.
Vol. 14, No. 5
May 1996
Alternatives 61
CPR Institute for Dispute Resolution
of current Rule 2.2 of the Model Rules
of Professional Conduct (governingthe
provision of “intermediary” services).
One reading is that the “lack of representation”in mediation makes the rule
inapplicable. Another is that intermediary servicesneed not turn on whether
there is a formal lawyerclient relationship, especially when two parties work
with the same professional-thus complicating some of the individual confidentiality protections.
For people concerned about standards and quality control in mediation, here’s the problem: to the
extent that mediators, especially
those who work within court
programs or by court referral,
“predict” court results or “evalua’te”the merits of the case (on either factual or legal grounds), they
are giving legal advice.
Mediators, courts and rules
may disclaim responsibility for any
information mediators give out, or
treat it as not given by an agent, fiduciary, or “counsel.” But as a practical matter, parties and others may
rely on what the mediator tells them,
in assessing their alternatives, suggesting other options, and agreeing
to settlements.
against a third-party neutral when they
rely on a mediator’s information or
advice that is unfair, unjust orjust plain
wrong. For this reason, some ADR
groups have argued against mediator
immunity (See e.g., The National Standards for Court Connected Mediation
Programs (Center for Dispute Settlement, 1992).
Ideally, we should analyze the work
of third-party neutrals to see what they
do, and then attempt to develop the
appropriate regulatory models. I dis-
of evaluative mediation. They still
have other options as mediators: they
can limit their role to facilitation, comediate with lawyers, or ask the parties to release them from liability for
bad legal advice. Non-lawyer mediators might still be subject to the (seldom enforced) regulations against
unauthorized practice of law. Lawyers
can’t get such a sweeping release from
their malpractice liability (See Rule
1.8(h) ) .
Giving legal predictions and evaluations is law work, whether or not
there is a lawyerclient relationship.
Within these boundaries, we need
rules that permit qualified people
without legal training to mediate.
Some observers suggest that when
mediators act more like neutral
judges, the proper analog is the
ABAJudicial Code of Conduct. In
my view, these rules also gwe inadequate guidance since mediators perform different functions and hear more
confidential information than judges.
But that is a topic for another day.
Still, there’s clearly a quality control
problem. Just because a mediator has
a law degree-or even an up-to-date
license to practice-does not mean
that he or she will give accurate legal
advice, prediction or evaluation.
Complex mediation these days often
involves legal questions and mediator
prediction or evaluation of the legal
merits or “likely outcomes” of cases.
Wouldn’t you want a mediator with legal expertise if you were involved in an
important case?
Immunity doctrines, which protect
judges, some arbitrators and other
third-party neutrals from liability for
giving incorrect information or damaging rulings, will continue to protect
(overbroadly,in my view) many mediators. These issues become particularly
troubling when either none of the
parties has a lawyer or when only one
does. Mediators are most likely to “deserve” immunity when all parties to a
dispute are receiving independent legal advice.
Our next inquiry: if (some) mediation involves practicing law, who
should do it? How can we regulate it?
And, most importantly, how can we
insure quality and competence?
Mediators who evaluate
the merits of a case are
giving legal advice.
Reliance on the Mediator
Problems that I used to dream up as
hypotheticals now occur daily in mediation sessions: the mediator chosen
for his or her subject matter expertise
makes predictive or evaluative statements about alternatives in court that
one party or counsel know to be
“wrong.”What obligation does the ‘‘Favored” party (or its lawyer) have to tell
its opponent that he or she may have a
better case? This problem often arises
when one party is represented and the
other isn’t-as happens in employment discrimination cases.
The current trend (which I mostly
agree with) is to grant quasi-judicial
immunity to at least court-based third
party neutrals, See e.g. Howard u.
Drapkin 222 Cal. App. 3d 843 (1990);
Wagshall u. Foster, 28 F.3d 1249 (DC Cir.
1994);Meyers u. Contra Costa County Department of Social Services 812 F.2d 1154
(9th Cir. 1987). However, that means
parties have virtually no recourse
agree with the argument that mediators
can give neutral, unbiased “legal information” that is not the practice of law,
See, Sandra Purnell, The Attorney as
Mediator-Inherent Conflict of Interest? 32 UCLA L. Rev. 986 (1985).
Case law attempting to define the
practice of law suggests that it entails
applying legal principles to concrete
facts. In Dauphin County Bar Association
u. Mazzacaro, 456 Pa. 545 (1976), for
example, a court defined law practice
as skills that included “an ability to
evaluate the strengths and weaknesses
of the client’s case vis-a-vis that of the
adversary” (that court enjoined insurance adjusters who were not lawyers
from giving such legal advice).
While some ADR experts pin their
analysis on “client representation,” I
prefer to look at reliance. Where, as
seems to be the current trend, there
is increased liability imposed on lawyers for reliance by third-party beneficiaries on legal opinions or advice
given to others, the privity of the lawyer-client relationship may not be determinative.
When mediators engage in some
prediction or application of legal standards to concrete facts-and especially when they draft settlement
agreements, I think they are “practicing” law. That means neutrals who are
not trained as lawyers need to be wary
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