Concept
Arbitrators Versus Mediators
Lawyer as arbitrator, mediator, or other third-party neutral
Arbitrators Versus Mediators
Rule 2.4(a) lists arbitrators and mediators side by side as capacities in which a lawyer may serve as a third-party neutral.1 The pairing is accurate, since each assists nonclients with a dispute and represents neither, but it hides how differently the two jobs work. The rule's only operative command, in subsection (b), tells the lawyer to make sure unrepresented parties know she is not their lawyer.2 It does not say whether she may meet privately with one side or how much impartiality she owes, so those duties must come from elsewhere.3
Where they come from depends on the power the neutral holds. An arbitrator has ultimate authority to resolve the dispute, alone or as a panel member, and so assumes responsibilities similar to a judge's.4 A mediator can neither decide the dispute nor force a decision, which might suggest that few duties attach to her. She nevertheless controls the process and the flow of information between the parties, and that control is real power.5 Duties follow power because the parties' exposure grows with what the neutral can do to them. A private conversation with the arbitrator who will decide the case can shape the outcome while the absent side never gets to answer. The same conversation with a mediator may be an ordinary tool of the process, because she has no authority to impose a result.6
The label “third-party neutral” therefore settles little about conduct once the session begins. A question about a neutral's conduct should start with whether the lawyer decides the dispute or helps the parties decide it, because the answer selects the set of expectations that applies. The sections below take the arbitrator first, then the mediator, and end with a question the rules leave open: how much legal guidance a lawyer-mediator may give before the parties can reasonably treat her as their lawyer.
Arbitrator as Adjudicator
An arbitrator is the one neutral named in Rule 2.4(a) who decides the matter.7 She holds ultimate authority to resolve the dispute, whether she acts alone or as a member of a panel, and for that reason she assumes responsibilities similar to a judge's, including impartiality and avoidance of ex parte communications with the parties.8 Rule 2.4 states none of those duties. Its one operative command tells unrepresented parties what the lawyer is not and says nothing about how she conducts the decision.9 The two duties have separate rationales, and both trace to the arbitrator's power.
Impartiality matters because an award binds the parties. They hand the dispute to a private decisionmaker whose ruling controls the outcome, so the process works only if each side can trust that the decisionmaker leans toward neither. The ban on ex parte communications protects the same trust from another direction. An ex parte communication is a contact in which one side speaks to the decisionmaker while the other is absent or uninformed, and the absent side has no chance to answer what was said. A private argument can therefore tilt the result on a record that side never helped shape.
Because Rule 2.4 lists no duties, a lawyer-arbitrator looks to other sources. The comment reminds lawyer-neutrals that court rules or other law may apply to them, and that they may be subject to codes of ethics such as the Code of Ethics for Arbitration in Commercial Disputes, prepared by a joint committee of the American Bar Association and the American Arbitration Association.10 She should also know the formal requirements under which an award will be recognized and enforced, such as those in the Federal Arbitration Act.11 Parties choose arbitration to obtain a decision that binds them, and an award that misses those requirements may fail to deliver one.
Other rules police the arbitrator's role from the advocates' side. Rule 1.0(m) defines a tribunal to include an arbitrator in a binding arbitration proceeding, so the rules imposing ethical duties with respect to a tribunal apply with full force when a lawyer represents a client there.12 The provisions that govern a lawyer's conduct in adjudication reach private binding arbitration as well as court litigation, which is how the arbitrator's duties are enforced indirectly even though Rule 2.4 is silent about them. A later section returns to advocacy before neutrals.
The impartiality expectation has one exception: a lawyer selected as a partisan of a party on a multimember arbitration panel.13 On a panel built that way, each side has its own appointee and a neutral member holds the balance, so the expectation of impartiality bears on the neutral member in a way it does not bear on a party's appointee. The exception turns on how the lawyer came to sit on the panel. A sole arbitrator, or the neutral member of a panel, remains fully subject to the judge-like expectations.
Two errors recur on exams. One quotes Rule 2.4 for impartiality and ex parte duties that its text never states; those duties come from the arbitrator's judge-like position and from arbitration codes and other law. The other reads the partisan exception as permission for every arbitrator to favor a side, when the exception turns on how the lawyer came to sit on a multimember panel.
Mediator as Facilitator
A mediator is the neutral who decides nothing. Rule 2.4(a) names her among the capacities in which a lawyer may serve,15 and her function is to facilitate a resolution the parties reach voluntarily; she can neither decide the dispute nor force a decision.16 That invites the inference that she needs few ethical limits. The inference overlooks what she does hold: control of the process and of the flow of information between the parties, including when the session breaks into caucuses (private meetings between the mediator and one side) and what she reveals to each side.17
Each of those controls shapes the outcome without any ruling. What a party knows about the other side's position is largely what the mediator chooses to tell it, so a mediator who carries a concession across the table early, or holds it back, changes what the listener believes is possible and therefore what it will accept. A caucus is private by design, so the absent side cannot answer what was said there. The parties must rely on the mediator's own fairness, because no ruling exists for anyone to review. Influence that operates out of view and depends on one person's discretion is why standards for her conduct matter even though she cannot decide.
The arbitrator's standards do not carry over automatically. Rule 1.0(m) defines a tribunal to include an arbitrator in a binding arbitration,18 and mediation is not a proceeding before a tribunal, so the ethical constraints on lawyers in adjudication apply to it less readily.19 The clearest consequence concerns ex parte communications. A judge or arbitrator faces strict limits on private contact with one side, but the parties to a mediation may well be encouraged to communicate privately with the mediator, and she may accept those communications in confidence.20 The difference follows from the job. A mediator helps the parties find terms they can accept, and she can do that only if each side tells her what it would really take to settle, including what it would never say in front of an opponent. Because she cannot decide, a private conversation cannot produce a ruling that the absent side never had a chance to answer.
Both conversations were private and one-sided, so the difference lies in the power of the neutral who received them. A party who confides in a mediator risks little in a process that cannot end in a ruling, while a party who argues privately to an arbitrator would shape a binding award in the other side's absence.
Because her power is real and Rule 2.4 is thin, a lawyer-mediator must look beyond it. The rule itself requires her to tell unrepresented parties that she is not representing them.21 Apart from the conflict rules that a later section takes up, the Model Rules give very limited guidance on a mediator's duties.22 The comment fills part of the gap: lawyer-neutrals may be subject to court rules or other law that apply to neutrals generally or to lawyers serving as neutrals, and to codes of ethics such as the Model Standards of Conduct for Mediators, prepared jointly by the American Bar Association, the American Arbitration Association, and the Society of Professionals in Dispute Resolution.23 In Florida, a Bar member who is a certified mediator is also governed by the law and rules relating to certified mediators.24
Which of those sources applies depends on the kind of mediation. Government often shapes court-connected mediation: in mandatory mediation the mediator may be a government employee; where a court orders mediation it may select the mediator; and more commonly the parties may agree on one, with a judge or other court employee appointing if they cannot. Even then, the parties may be required to choose from a roster approved by the court or another government agency, and getting on the roster may require qualifications.25 The law otherwise permits anyone to mediate and requires no license, but that does not make mediation a free market, because much of it is mandated or funded by government.26 Outside court-connected programs, a lawyer's duties come largely from ethical standards and from whatever the parties have agreed to.27 The practical question is which of these sources attach to the engagement: court rules, certification requirements, a code of ethics, or the agreement to mediate. Her law license stays with her in every setting, so the Model Rules still reach her even though mediating itself requires no license.28
Professional standards for neutrals generally call for:
- disclosure of conflicts of interest;
- transparency about decision methods and processes;
- fair compensation and, generally, no contingent fees;
- neutrality, meaning non-bias, impartiality, and no prejudgment for or against any party; and
- adherence to promises of confidentiality and to any advice-giving or other terms the parties agreed to by contract.29
Each item guards against a way a facilitator's control over process and information could be misused. The last item is the counterpart of the freedom to receive private communications: a mediator can take them in confidence only because the parties can count on her to keep her promises, and a mediator who broke a confidentiality promise made in caucus would destroy the candor that private contact exists to produce. The reference to advice-giving points to a question the Model Rules leave open, taken up below.
Two errors recur on exams. One carries the arbitrator's ban on ex parte contact into mediation, which treats a facilitator as a decisionmaker and overlooks that mediation is not a tribunal proceeding. The other reads the thinness of the Model Rules as an absence of standards, when court rules, other law, codes such as the Model Standards of Conduct for Mediators, certification rules, and the parties' own agreement fill the space the Model Rules leave open.
Legal Advice by Mediators
Rule 2.4(b) requires a lawyer serving as a third-party neutral to tell unrepresented parties that she is not representing them. If she knows or reasonably should know that a party misunderstands her role, she must also explain how that role differs from a client's lawyer's.31 The rule stops there. It does not say whether, after that disclosure, she may tell the parties what the law is or predict what a court would do. Unrepresented parties ask exactly that, and the license that qualifies the mediator to answer is what makes the question hard: legal advice risks creating an attorney-client relationship with the parties, which would contradict the disclosure she has just made. The Model Rules do not settle how far she may go, and state authority varies.32
Advice and neutrality pull in different directions. Advice applies the law to one party's circumstances and points toward a course of action, so a participant who receives it from the person running the session has good reason to treat her as counsel, which is the confusion Rule 2.4(b) exists to prevent. The other participant can fairly wonder whether the advice tilted the process. States share that concern and differ on how much legal content a mediator may supply. They have taken three positions:
- One group requires a lawyer-mediator who wants to avoid an attorney-client relationship with the parties to refrain from legal advice altogether.
- A second group permits legal advice, generally on condition that it is given in the presence of all parties.
- An intermediate position permits legal information but not legal advice.33
The flat bar protects the neutral's position most fully, and its everyday form is a referral. When parties without lawyers ask how a court would likely resolve their dispute, the lawyer-mediator declines to answer and tells each of them that they have the right to hire a lawyer for legal advice.34 A prediction of the court's ruling is what a client's lawyer provides, and a participant who receives one from the mediator has every reason to treat her as counsel. The referral removes that inference at small cost: the parties can still get advice from someone whose job is to give it, and the mediator remains the person who serves everyone in the room alike.
The states that allow advice before all parties answer the same concern differently. The danger in advice is that it flows to one side out of the other's hearing and turns the mediator into a hidden advocate. If everyone must be present, that channel closes, because both parties hear the same statement of the law and know what the other was told.
The intermediate position splits the difference. A mediator may explain what a statute provides or how disputes of this kind are generally treated, which informs the parties without telling either what to do, but she may not tell a particular party how to resolve that party's problem. The line is hard to draw, since a general statement of law delivered to someone facing a decision can sound like a recommendation, and that difficulty is part of why the states have not converged.
The same question asked in a joint session, with both spouses listening, lands differently under each approach. It is forbidden in the first group of states and permitted in the second. In the third it may be answered only to the extent the response stays on the information side of the line. Private advice to one party fits none of the three approaches, so treat it as a violation on any exam fact pattern.
The same uncertainty attaches to drafting the settlement agreement. Authority varies on how far a lawyer-mediator may take part in drafting and still avoid an attorney-client relationship with the parties.35 Drafting sharpens the problem because a written agreement must choose words with legal consequences for two people whose interests diverge, and a lawyer who chooses those words does something close to what each party's own lawyer would do. Recording terms the parties have already reached looks less like counsel than selecting the terms for them, though the jurisdictions have not marked that line uniformly.
Whatever a state allows on advice, the lawyer-mediator should make the surrounding points clear. She should tell both parties that they are not her clients, that she is providing mediation services and not legal services, and that she cannot later represent either of them in the matter, a limit some authority extends to a related matter.36 The next section develops the conflict rules behind that limit.
Two errors recur on exams. One cites Rule 2.4 as if its text contained a flat ban on mediator advice, or as if it authorized advice, when it does neither. The other answers as though the law were uniform. A sound answer says that the Model Rules leave the question open and that states split three ways, then applies the approach the stem names; where the stem names no state, it notes that advice given privately to one party is the clearest danger under every approach.