| ADReport |
Alternative
Dispute Resolution Section Newsletter |
| Volume Two, Number
Two |
Honorable
Melanie A. Vaughn, Chair
Mary Louise Preis, Editor
Jonathan S. Rosenthal, Co-Editor |
Your FEEDBACK, Part I - Mediators
Drafting Agreements
We heard back from many of you on a variety of
issues that were explored in our last issue. We received a particularly large
amount of feedback on the issue of whether or not mediators should draft
agreements. As many of you know, there are some ethical questions that arise
when the mediator is asked to draft an agreement. In lieu of drafting
agreements, many attorneys draft a "memorandum of understanding,"
which the parties then take to their counsel to then refine it and draft the
agreement.
Lawyers/Mediators who draft agreements for the
parties run the risk of having the parties return later to indicate that they
relied on some language the mediator put into the agreement that has now hurt
them. The mediator, recalling that she or he incorporated language in the
agreement that said no legal advice was given during the mediation, may have a
problem. Mediators who have legal backgrounds have used "boiler plate"
in some family law agreements, and if the parties did not discuss those
elements, is that mediator overstepping his or her role? If the mediator has
only incorporated the desires of the parties without any boiler plate, is that
any different than a memorandum of understanding? In other words, the mediator
has only acted as a scribe, and not beyond that. If included in the agreement to
mediate the mediator clearly states that he or she will not render legal advice
or opinions, will that aid in protecting a mediator later?
Non-lawyer mediators face the question of whether
they are engaging in the unauthorized practice of law when they draft what may
well turn out to be a binding contract. Arguably, if acting as a mediator is
defined as not practicing law, and a mediator then does draft an agreement for
the parties, has that mediator engaged in the unauthorized practice of law, even
though he or she has the background as an attorney?
Your responses show the debate is alive and well.
Slightly more than half of you said that mediators should not draft agreements
under any circumstances. Of the others (slightly less than half of the
responses), most indicated that drafting an agreement was only acceptable under
certain conditions, such as when the parties are both pro se and if the parties
have been advised that they should have attorneys review the agreement. Some
people indicated that even if you do draft an agreement, you should advise the
parties to review it with their own individual private counsel, and you should
not allow the parties to sign and notarize the agreement in the mediator’s
office. Others expressed the view that pro se, or more specifically, indigent
parties, should not be denied the option of mediation simply because they cannot
pay an attorney to later review the agreement.
This issue continues to be a hot topic. Programs
may be developed in the future whereby attorneys could represent parties through
a divorce pro bono, using ADR. In such a situation, an attorney might only
represent a party during the mediation and then draft the agreement. Such a
program would assist in getting mediation services to indigent parties without
putting pressure on the mediator to draft the agreement.
The issue of whether mediators should draft
agreements will be explored more fully in an upcoming issue.
