When a lawyer serves as a mediator, what must the lawyer tell the parties, and can the mediator exaggerate or bluff to push a settlement?
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This page answers the general question as of 2025. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
The opinion addresses the lawyer who serves as a mediator, a role Rule 2.4 defines as assisting two or more persons "who are not clients of the lawyer" to resolve a dispute. The committee explains that most Model Rules govern the representation of clients and do not apply to a lawyer-mediator; Rules 1.12 and 2.4 address the neutral role specifically, while role-independent rules such as Rules 8.1 through 8.4 still apply.
On disclosure, the opinion reads Rule 2.4(b) to impose two duties: to inform unrepresented parties that the mediator does not represent them, and, when the mediator knows or reasonably should know a party does not understand the role, to explain the difference between a neutral and a lawyer representing a client. Drawing on Comment [3], the opinion concludes that "unless the parties are sophisticated consumers of mediation services, it is prudent for the lawyer-mediator not only to inform all parties that the lawyer-mediator does not represent them but also to afford them an opportunity to discuss what this means," including that the attorney-client privilege does not apply.
The opinion then addresses staying within the neutral role. The mediator should avoid creating the impression of providing client-lawyer protections, and "should not state that the lawyer-mediator is acting to achieve a party's best interest or that a proposed settlement is in a party's best interest." The mediator may give truthful information, including a view of how a tribunal is likely to rule, but should avoid communicating in a way that looks like legal advice; if an unrepresented party asks for legal advice, the mediator should restate the neutral role and advise the party to consult counsel.
On honesty, the opinion applies Rule 8.4(c), which forbids dishonesty, fraud, deceit, or misrepresentation. It contrasts the latitude lawyers have when negotiating for a client, where Rule 4.1 and ABA Formal Opinion 06-439 treat "puffery" and statements about negotiating goals as not material facts. Because a mediator does not represent a party, Rule 4.1 does not apply, and the opinion reasons that a mediator's statements carry more weight: a "false statement that would not be regarded as a statement of material fact" coming from a party's lawyer "is likely to be taken at face value coming from a lawyer-mediator precisely because of the lawyer-mediator's role as a neutral." The mediator therefore may not, for example, falsely tell a party "this is the best offer the opposing party will make," and may convey a party's statements only without vouching for ones the mediator knows to be false.
In practice
Under this opinion, a lawyer-mediator's first task is role clarity: inform unrepresented parties that the mediator represents no one, and, unless the parties are experienced users of mediation, give them a chance to discuss what that means, including that the privilege does not attach. The opinion holds the mediator must not say or imply that the mediator is advancing a party's best interest or that a settlement is in a party's best interest, and should not communicate in a way that reads as legal advice; the mediator may still provide legal information and candid assessments of how a tribunal might rule.
On candor, the opinion holds the mediator has less room than a party's negotiator. Because parties are advised the mediator is neutral, they "would have no similar reason to be on their guard," so the mediator must be precise in relaying offers and positions, must not make statements known to be false about the strength of a party's case or an opposing party's bottom line, and must not lend the mediator's own credence to a party's falsehoods.
Common questions
Q: As a lawyer-mediator, do I have to tell the parties I am not their lawyer?
A: Per the opinion, yes. Rule 2.4(b) requires informing unrepresented parties that the mediator does not represent them, and explaining the difference between the neutral role and representing a client when a party does not understand it. Unless the parties are sophisticated users of mediation, the opinion treats giving them a chance to discuss what this means as prudent.
Q: Can I tell a party that accepting a settlement is in their best interest?
A: No. The opinion concludes the mediator should not state that the mediator is acting in a party's best interest or that a settlement is in a party's best interest, because the party may rely on it as if the mediator were the party's lawyer. The mediator may give truthful information that helps the parties judge that for themselves.
Q: Can I use the same bluffing or puffery a lawyer uses when negotiating for a client?
A: The opinion concludes a mediator has less leeway. Rule 4.1's negotiation-puffery allowance does not apply because the mediator represents no one, and under Rule 8.4(c) the mediator may not make statements known to be false, such as falsely saying an offer is the other side's best.
Q: A party asks me, as the mediator, for legal advice. What do I do?
A: Per the opinion, the mediator should again explain the neutral role and advise the party to seek legal advice from counsel of their choice, because giving legal advice risks forming a client-lawyer relationship inconsistent with neutrality.
Q: Can I relay one party's statements that I think are exaggerated?
A: The opinion permits conveying a party's statements, including ones that are not "material facts" under Rule 4.1, but the mediator must make the origin clear and may not give those statements credence if the mediator knows them to be false.
Background and rules framework
The opinion interprets Model Rule 2.4 (lawyer serving as third-party neutral), particularly the disclosure duties of Rule 2.4(b) and Comment [3], together with Rule 1.12 (former judge, arbitrator, mediator, or other neutral). It applies Rule 8.4(c) (dishonesty, fraud, deceit, or misrepresentation), which governs lawyers in and out of the representational role, and contrasts the negotiation latitude that Rule 4.1 and its Comment [2] give lawyers representing clients. It builds on ABA Formal Opinion 06-439 (a represented party's lawyer in caucused mediation), Formal Opinion 514 (avoiding role misunderstanding), and Formal Opinion 10-457 (legal information versus legal advice).
Citations and references
Rules of Professional Conduct:
- ABA Model Rule 2.4 (lawyer serving as third-party neutral), including 2.4(b) and Comment [3]
- ABA Model Rule 8.4(c) (dishonesty, fraud, deceit, or misrepresentation)
- ABA Model Rule 4.1 (truthfulness in statements to others) and Comment [2]
- ABA Model Rule 1.12 (former third-party neutral)
Other opinions cited:
- ABA Formal Op. 06-439 (2006): a lawyer's obligations when representing a client in caucused mediation
- ABA Formal Op. 514 (2025): avoiding misunderstanding about the lawyer's role
- ABA Formal Op. 10-457 (2010): distinguishing legal information from legal advice
See also
- NY State Bar Op. 1178: Lawyer-Mediator as Third-Party Neutral
- DC Bar Op. 276: Lawyer-Mediator Must Conduct a Conflicts Check
- ISBA Op. 04-03: Mediator Preparing Post-Mediation Documents for Unrepresented Parties
- ABA Formal Op. 514: Advising an Organization About Legal Risk to Its Constituents
- RI EAP Op. 2008-01: Sole Practitioner Who Also Mediates May Not Use "Smith Law and Mediation" as a Law Firm Name
Source
- Landing page: ABA Formal Ethics Opinions index
- Original PDF: aba-formal-opinion-518.pdf
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