Can a Texas lawyer who served as mediator draft the written settlement agreement memorializing the parties' deal, and can the mediator suggest extra terms not discussed in the session?

Plain-English summary

The opinion considers a Texas lawyer serving as mediator who, after the parties reach an oral agreement, drafts a written settlement agreement incorporating the agreed terms and suggests some provisions that do not conflict with the oral agreement but were not expressly discussed. The questions are whether the lawyer-mediator may draft the agreement and whether the mediator may propose additional terms.

The Committee explains that serving as a mediator makes the lawyer an "adjudicatory official" who serves on a "tribunal" under the rules' Terminology section, subjecting the lawyer to Rule 1.11. Rule 1.11(a) bars later representing anyone in a matter the lawyer participated in personally and substantially as an adjudicatory official without all parties' consent, and Rule 1.11(b) bars an adjudicatory official from negotiating for employment with a party in a pending matter the official is handling. Opinion 583 held a mediator could not agree to both mediate a divorce and prepare the decree and other documents, because that meant agreeing in advance to represent both parties (violating Rule 1.11(b)) and representing opposing parties to the same litigation (violating Rule 1.06(a)).

The Committee distinguishes this situation. A mediator who prepares a written settlement agreement memorializing the parties' terms is not engaged in legal representation and therefore does not violate Rule 1.11 or 1.06; memorializing mediated terms is consistent with the mediator's traditional role (citing the Texas Supreme Court's Ethical Guidelines for Mediators, Guidelines 1 and 14). Preparing a draft of the writing is distinct from drafting court papers or ancillary legal instruments needed to effectuate the settlement. The Committee adds that a mediator commonly includes additional terms consistent with the parties' agreement (for example a dispute-resolution process, or the statutory language under Tex. Family Code 6.602 that makes a mediated settlement binding), and a mediator does not engage in legal representation by suggesting such terms, as long as the parties understand they are suggestions. The opinion limits its scope to the disciplinary-rules question and notes mediators may have other obligations under other law, including ensuring unrepresented parties understand the mediator is not representing them and a possible common-law duty to warn of non-representation (citing Burnap v. Linnartz).

In practice

Under this opinion, and under the Texas rules as they stood at the time of the opinion, a lawyer-mediator may draft the written agreement that memorializes the parties' mediated settlement and may suggest additional terms consistent with the parties' agreement without engaging in legal representation, so Rules 1.11 and 1.06 are not violated. The opinion holds the mediator should ensure the parties understand any added terms are suggestions, distinguishes drafting the memorializing writing from preparing court papers or ancillary legal instruments (which can cross into prohibited dual representation under Opinion 583), and notes mediators may owe other duties under non-disciplinary law.

Common questions

Q: As the mediator, can I write up the settlement agreement the parties reached?

A: Per Opinion 675, yes; preparing a written agreement that memorializes the mediated terms is part of the mediator's traditional role and is not legal representation, so it does not violate Rule 1.11 or Rule 1.06.

Q: Can I add terms the parties did not actually discuss?

A: Yes, if they are consistent with the parties' agreement (for example a dispute-resolution clause or the statutory language making a mediated settlement binding), and the opinion says the mediator should ensure the parties understand such terms are suggestions.

Q: Where is the line that a mediator cannot cross?

A: The opinion, following Opinion 583, distinguishes memorializing the settlement from agreeing to prepare court papers and other legal documents to effect the deal (such as a divorce decree), which would amount to representing both parties and violate Rules 1.11(b) and 1.06(a).

Background and rules framework

The opinion interprets Texas Disciplinary Rule 1.11 (adjudicatory officials, including 1.11(a) and 1.11(b)), which corresponds to ABA Model Rule 1.12, and Rule 1.06(a) (no representing opposing parties to the same litigation), which corresponds to ABA Model Rule 1.7. It also references the Texas Supreme Court's Ethical Guidelines for Mediators.

Citations and references

Rules of Professional Conduct:

• MR 1.12 (former judge, arbitrator, mediator, or other third-party neutral)
• MR 1.7 (conflicts of interest; current clients)
• Texas Disciplinary Rules 1.11(a), 1.11(b), 1.06(a)

Statutes:

• Tex. Family Code section 6.602 (binding mediated settlement agreement)

Cases:

• Burnap v. Linnartz, 914 S.W.2d 142 (Tex. App.-San Antonio 1995, writ denied)

Other authorities:

• Ethical Guidelines for Mediators (Tex. Sup. Ct. Misc. Docket No. 11-9062, April 11, 2011)

Other opinions cited:

• Texas Professional Ethics Committee Opinion 583 (September 2008): mediator may not also prepare divorce documents for both parties

See also

• Ohio BPC Op. 2009-004: Lawyer-Mediator Drafting Documents After Domestic-Relations Mediation
• TX Ethics Op. 666: Married Lawyers at Opposing Firms on the Same Matter

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-675/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_675.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

QUESTION PRESENTED

May a Texas lawyer, acting as a mediator, prepare and provide the parties to the mediation a proposed written agreement that memorializes the terms of the parties' agreement reached during the mediation?
If so, may the lawyer-mediator propose terms for inclusion in the written agreement in addition to the specific terms agreed to by the parties during the mediation?

STATEMENT OF FACTS

A Texas lawyer acts as mediator in a dispute between two parties who reach an oral agreement during the mediation. The lawyer-mediator drafts a written settlement agreement, incorporating the agreed terms, and presents it to the parties for review and signing. The lawyer-mediator suggests some provisions in the draft agreement that do not conflict with the parties' oral agreement but were not expressly discussed during the mediation session.

DISCUSSION

Under the Texas Disciplinary Rules of Professional Conduct, serving as a mediator constitutes acting as an "adjudicatory official." The Terminology section of the Rules defines "Adjudicatory Official" as "a person who serves on a 'Tribunal,'" which is defined to include mediators "and comparable persons empowered to resolve or to recommend a resolution of a particular matter[.]"

As an "adjudicatory official" under the Rules, a lawyer acting as a mediator is subject to the requirements of Rule 1.11. Subsection (a) of that Rule provides that "[a] lawyer shall not represent anyone in connection with a matter in which the lawyer has … participated personally and substantially as an adjudicatory official … unless all parties to the proceeding consent after disclosure." Rule 1.11(b) provides that "[a] lawyer who is an adjudicatory official shall not negotiate for employment with any person who is involved as a party or as attorney for a party in a pending matter in which that official is participating personally and substantially."

Professional Ethics Committee Opinion 583 (September 2008) considered whether a mediator could agree to mediate a divorce between unrepresented parties and prepare all of the documents necessary to effect an agreed divorce if an agreement resulted from the mediation. The agreement between the mediator and the parties thus required the mediator to prepare the decree of divorce and other documents, possibly including real property conveyances, releases, child support provisions, and visitation schedules. The Opinion found that such an arrangement would violate Rule 1.11(b) because the lawyer would be agreeing in advance to provide legal representation to both parties in the divorce case. Furthermore, undertaking such representation would violate Rule 1.06(a), which prohibits lawyers from representing opposing parties to the same litigation. Opinion 583 concluded: "Under the Texas Disciplinary Rules of Professional Conduct, a lawyer may not agree to serve both as a mediator between parties in a divorce and as a lawyer to prepare the divorce decree and other necessary documents to effect an agreement resulting from the mediation. Because a divorce is a litigation proceeding, a lawyer is not permitted to represent both parties in preparing documents to effect the terms of an agreed divorce."

In contrast to the question addressed in Opinion 583, a mediator who prepares a written settlement agreement that memorializes the terms agreed to by the parties during the mediation is not engaged in legal representation and therefore does not violate Rules 1.11 or 1.06. Assisting in memorializing mediated settlement terms is consistent with a mediator's traditional role. See generally Ethical Guidelines for Mediators (Tex. Sup. Ct. Misc. Docket No. 11-9062, April 11, 2011) ("Guidelines"), Comment to Guideline 1 ("[a] mediator's obligation is to assist the parties in reaching a voluntary settlement") and Guideline 14 ("[a] mediator should encourage the parties to reduce all settlement agreements to writing"). Preparing a draft of a writing to memorialize the parties' oral agreement is part of the normal mediation process and is distinct from drafting court papers or other ancillary legal instruments that may be needed to effectuate the settlement agreement.

It is not uncommon for a mediator to include proposed terms in a draft settlement agreement in addition to, but consistent with, the express terms of the parties' oral agreement. For example, some mediators may propose that the written settlement agreement include a process for resolving disputes that may arise under the settlement agreement, even if the parties did not discuss that specific issue during the mediation session. Likewise, mediators may suggest that the parties to a divorce mediation include the language required by statute to make the settlement agreement binding. See Tex. Family Code § 6.602 (providing that a mediated settlement agreement is binding if it "provides, in a prominently displayed statement that is in boldfaced type or capital letters or underlined, that the agreement is not subject to revocation"). Although a mediator should ensure that the parties are aware that such additional terms are suggestions, a mediator does not engage in legal representation by making such suggestions, whether during the initial settlement negotiations or during the process of assisting the parties in reducing their agreement to writing.

The scope of this opinion is limited to whether a lawyer-mediator violates the Texas Disciplinary Rules of Professional Conduct by preparing and providing the parties with a draft of a written settlement agreement. This opinion does not purport to address the obligations of mediators generally, which obligations may be defined by other laws or ethical guidelines. For example, the Texas Supreme Court has advised that a mediator should ensure that unrepresented parties understand that the mediator is not providing legal representation and that there may be risks in proceeding without independent counsel or other professional advisors. (Guideline 7, Comment; Guideline 11.) In appropriate circumstances, a mediator should encourage the parties to seek legal, financial, tax, or other professional advice before, during, or after the mediation process. (Guideline 11, Comment (a).) Further, a lawyer may owe a common law duty to warn a non-client of the lawyer's non-representation when the lawyer is aware or should have been aware that the lawyer's conduct would have led a reasonable person to believe that the lawyer was representing that person. Burnap v. Linnartz, 914 S.W.2d 142, 149 (Tex. App.-San Antonio 1995, writ denied). Nothing in this opinion should be read to the contrary.

CONCLUSION

A Texas lawyer, acting as mediator, does not violate the Texas Disciplinary Rules of Professional Conduct by preparing and providing to the parties a draft of a written agreement that memorializes the terms of the parties' settlement reached during the course of the mediation, or by suggesting additional terms for inclusion in the draft agreement.

Tex. Comm. On Professional Ethics, Op. 675 (2018)