Also known as: third party neutral · third-party-neutral · neutral third party
Written by attorneys · grounded in primary & secondary sources — see below
A role in which a lawyer assists two or more persons who are not the lawyer's clients to reach a resolution of a dispute or other matter that has arisen between them. Service in the role may include acting as an arbitrator, mediator, or evaluator. The lawyer must inform unrepresented parties that the lawyer is not representing them and must explain the distinction from client representation when a party misunderstands the role.
Select any source to read its text and confirm it supports the definition.
Dustin served as mediator between Green Organic and Ash Livestock in a supply-contract dispute. After the mediation produced a revised agreement, Dustin joined a law firm that Ash Livestock asked to sue Green Organic for breach of the revised terms. No party gave written informed consent. Green Organic moved to disqualify Dustin and the firm because Dustin had participated personally and substantially as a third-party neutral in the same matter.
Field Structures and West Foundation jointly retained Jasper to mediate their multimillion-dollar construction-delay dispute. Jasper conducted joint sessions and private caucuses, exchanged proposals, and repeatedly stated that he represented neither side and would not appear or draft pleadings for anyone. Jasper never billed either company as a client. The arrangement placed Jasper in the role of assisting two non-clients to resolve an existing dispute through mediation.
Coastal Live and Fair Events retained Clarence to mediate their film-distribution dispute. At the outset Clarence told both sides he represented neither party and was present only to help them reach a voluntary resolution. When one side later appeared confused about his function, Clarence explained that he was not acting as their lawyer and could not give legal advice to either side. The explanation satisfied the requirement to correct misunderstandings about the third-party neutral role.
A lawyer enters the role by assisting two or more non-clients to resolve a dispute between them. The assistance may take the form of mediation, arbitration, or another facilitative process. Joint retention by the disputing parties and repeated disclaimers that the lawyer represents neither side confirm the neutral status.
Supporting sources
Yes. Rule 1.12(a) prohibits the lawyer from representing anyone in connection with a matter in which the lawyer participated personally and substantially as a third-party neutral unless all parties give informed consent confirmed in writing. The prohibition applies even when the later matter involves post-mediation breaches of a revised agreement that grew out of the mediation.
Supporting sources
The lawyer must inform unrepresented parties that the lawyer is not representing them. When the lawyer knows or reasonably should know that a party misunderstands the role, the lawyer must explain the difference between serving as a neutral and serving as a client's advocate.
Supporting sources
Detailed suggestions offered to one side during caucus can create the appearance of advocacy and may subject the lawyer to discipline. The stronger view is that the lawyer remains a neutral when the overall facts show joint retention, repeated disclaimers of representation, and no attorney-client relationship formed with either party.
Supporting sources