Two for the Price of One Is a Costly Choice: The Ethical Issues for Lawyer-Mediators Who Consider Drafting Agreements

Abstract

(Excerpt) Should a lawyer who serves as a mediator for two unrepresented parties also draft the resulting agreement if both mediating parties request the lawyer to do so? On June 30, 2010, the ABA Section of Dispute Resolution Committee on Mediator Ethical Guidance (hereinafter “The Committee”) issued Ethics Opinion SODR-2010-1 “Mediator’s Duty of Care When Drafting Agreements.” This ethics opinion calls into question the blurry ethical contours between lawyering and mediation when mediating with pro se parties. In this column, I will review the Committee’s ethics opinion and then, applying the New York Rules of Professional Conduct, discuss the potential ethical minefields and workable alternatives for those New York lawyers who serve as mediators and also contemplate drafting the resulting agreement

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