Can a lawyer who mediated a matter also represent one of the parties, and can the mediator draft the settlement documents?

Plain-English summary

The inquiry asked two questions: whether a lawyer acting as a mediator may prepare final documents and sign a settlement agreement in which he or she also acts as lawyer for one of the parties, including a clause stating that representation and having the opposing party sign a consent and waiver; and whether it is ethical for a mediator to prepare initial dissolution pleadings where the lawyer mediated and the parties had independent counsel.

On the first question, the committee answered no: RPC 1.12(b) and case law prohibit a lawyer from acting as an adjudicative officer or arbitrator while representing a party in the same proceeding in which the lawyer participated personally and substantially, and the committee said the rule extends to mediators, who have been held to be adjudicative officers by the Washington courts. The committee added there is no prohibition on the mediator preparing the mediation agreement or final documents, which may be advisable, and that where neither party is independently represented the lawyer must advise that the lawyer can represent only one party, or mediate with each party's consent, but cannot mediate and represent one party in the same proceeding. On the second question, the committee answered yes: when the parties are independently represented and the mediator's sole function is to mediate, the mediator may act as scrivener preparing the mediation document; as a practical matter, mediators should mediate and, where necessary, prepare a mediation agreement, while attorneys should prepare pleadings.

Currency note

This opinion was issued in 1997, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here. Washington's cited rules correspond to ABA Model Rule 1.12 (former judge, arbitrator, mediator, or other third-party neutral) and former ABA Model Rule 2.2 (intermediary), which the ABA later eliminated in the 2002 revisions.

Common questions

Q: Can a lawyer mediate a case and also represent one of the parties in it?

A: No. The committee concluded RPC 1.12(b) and case law prohibit a lawyer from both mediating and representing one party in the same proceeding.

Q: Can the mediator draft the settlement agreement and final documents?

A: Yes. The committee said there is no prohibition on the mediator preparing the mediation agreement or final documents, and it may be advisable.

Q: What if neither party has independent counsel?

A: The committee said the lawyer must advise that the lawyer can represent only one party, or mediate with each party's consent, but cannot mediate and represent one party in the same proceeding.

Q: Can the mediator prepare dissolution pleadings when both parties have counsel?

A: The committee said yes; when the parties are independently represented and the mediator's sole function is to mediate, the mediator may act as scrivener, though attorneys should prepare pleadings.

Background and rules framework

The opinion applied RPC 1.12(b) (corresponding to ABA Model Rule 1.12, which limits a lawyer who served as a judge, adjudicative officer, arbitrator, or mediator) and RPC 2.2 (corresponding to the former intermediary rule, ABA Model Rule 2.2) to a lawyer serving as a mediator. The committee read RPC 1.12(b) to reach mediators because Washington courts have treated them as adjudicative officers, while preserving the mediator's scrivener role in drafting the agreement and final documents.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.12 (former judge, arbitrator, mediator, or other third-party neutral); Washington RPC 1.12(b)
• ABA Model Rule 2.2 (intermediary; later eliminated by the ABA); Washington RPC 2.2

See also

• WA Ethics Op. 1727: Former GAL Can't Be the Lawyer
• WA Ethics Op. 1740: 'Of Counsel' to Two Firms

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=821

Original opinion text

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

Advisory Opinion: 1752
Year Issued: 1997
RPC(s): RPC 1.12(b); 2.2
Subject: Lawyer acting as mediator and representing a party; mediator preparing documents

[The inquiry concerned] (1) whether a lawyer, as a mediator, may prepare final documents and sign a settlement agreement in which he/she acts as lawyer for one of the parties, and includes a clause in the agreement indicating he/she represents one of the parties in the settlement, and has the opposing party sign a consent and waiver? and, (2) whether it is ethical as a mediator to prepare initial dissolution pleadings where the lawyer has acted as a mediator and the parties have had independent counsel?

The Committee has answered as follows:

(1) No. RPC 1.12(b) and case law specifically prohibit a lawyer from acting as an adjudicative officer or arbitrator, while representing a party in the proceeding in which he/she is participating personally and substantially. The rule should extend to a mediator as 1.12(b) refers to mediator in the remaining portion of the rule, and mediators have been held as adjudicating officers, by the Washington Courts.

There is no prohibition limiting the mediator from the preparation of the mediation agreement reached by the parties or the final documents. In fact, as a practical matter his/her preparation of the mediation agreement and final documents may be advisable, with the mediation agreement reflecting the parties' intent to have the same incorporated by reference into the final decree. Where neither party is represented independently, the lawyer is obligated to advise that he can only represent one party or can mediate with each party's consent but cannot mediate and represent one party in the same proceeding.

(2). Yes. When the parties are independently represented and the sole function of the mediator is to mediate, the mediator may act as scrivener, preparing the mediation document/agreement reached by all parties. There is no prohibition of the mediator preparing the mediation agreement or final pleading, where the parties are represented. As a practical point, mediators should mediate and where necessary prepare a mediation agreement. Attorneys should prepare pleadings. RPC 2.2.