{"id":247725,"date":"2026-05-07T08:00:10","date_gmt":"2026-05-07T13:00:10","guid":{"rendered":"https:\/\/molawyersmedia.com\/missouriinhouse\/?p=247725"},"modified":"2026-03-31T11:00:14","modified_gmt":"2026-03-31T16:00:14","slug":"aba-formal-opinion-518-mediator-ethics-guidance","status":"publish","type":"post","link":"https:\/\/molawyersmedia.com\/missouriinhouse\/2026\/05\/07\/aba-formal-opinion-518-mediator-ethics-guidance\/","title":{"rendered":"FAQs on ABA\u2019s new ethics opinion on mediation"},"content":{"rendered":"

By David A. Hoffman, BridgeTower Media Newswires<\/strong><\/p>\n

RICHMOND, VA \u2013 Last October, the American Bar Association\u2019s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 518, \u201cA Lawyer\u2019s Duties to Avoid Misleading Communications When Acting as a Third-Party Neutral Mediator.\u201d<\/p>\n

Although the opinion applies only to those mediators who are also lawyers, it could impact the entire mediation community because of its broad strokes about what mediators should and shouldn\u2019t say in their discussions with the parties in mediation.<\/p>\n

Why is the ABA regulating the activities of mediators? <\/strong><\/p>\n

It\u2019s become increasingly common for lawyers to serve as mediators. Although the percentage of lawyers who are mediators may be relatively small, the percentage of mediators who are lawyers is large. The ABA\u2019s Model Rules of Professional Conduct regulate many aspects of what lawyers do outside the practice of law, including mediation. For example, MRCP Rule 5.7 obligates lawyers to observe the model rules when they provide title insurance, tax return preparation, trust services, and financial planning. (See Comment 9.) Rule 2.4 recognizes that lawyers sometimes serve as mediators and arbitrators and regulates the type of disclosures that lawyers must make to the parties when the lawyer is serving as a third-party neutral, so that the parties understand that the mediator is not representing them. Importantly, for purposes of this opinion, the broad prohibition of \u201cconduct involving dishonesty fraud, deceit or misrepresentation\u201d set forth in Rule 8.4(c) is not limited to the attorney\u2019s actions while practicing of law.<\/p>\n

What does this opinion require lawyers serving as mediators to do, and what does it prohibit them from doing? <\/strong><\/p>\n

Basically, three things: (a) explain clearly the difference between the role of counsel vs. the role of mediator; (b) be honest as an intermediary and refrain from vouching for statements by a party that the mediator knows, or reasonably should know, are false; and (c) don\u2019t advise the parties about what\u2019s in their \u201cbest interest.\u201d<\/p>\n

What\u2019s wrong with discussing the client\u2019s \u201cbest interest\u201d? Mediators are supposed to talk with the parties about their goals and interests! <\/strong><\/p>\n

Yes, it\u2019s true that mediation is all about interest-based bargaining \u2014 as opposed to positional bargaining. And it is certainly a core role of a lawyer representing a client in a mediation to advise that client about the client\u2019s best interest. But the opinion points out that the lawyer-mediator\u2019s role is different: When lawyer-mediators provide advice (as opposed to legal information), a mediation party might conclude that the lawyer-mediator has the same fiduciary duties to that party that a lawyer would have in representing that party. This risk is even more pronounced when the party is not represented by counsel in the mediation.<\/p>\n

Does the opinion allow lawyer-mediators to talk with the parties about their interests at all? <\/strong><\/p>\n

There\u2019s nothing in the opinion that prohibits discussion of the parties\u2019 interests. For example, a lawyer-mediator could ask a party about their interest in a speedy and inexpensive resolution on the one hand, versus their interest in public vindication via a court judgment. What the opinion prohibits is the lawyer-mediator advising such a party about how they should resolve the tension between those competing interests.<\/p>\n

Does this prohibit lawyer-mediators from proposing settlement terms? <\/strong><\/p>\n

No, but only if lawyer-mediators are clear about their role in making such proposals. For example, some mediators use a double-blind \u201cmediator\u2019s proposal\u201d as an impasse-breaking technique in which the parties respond separately and confidentially to the mediator as to their willingness to accept the mediator\u2019s proposed terms. The opinion suggests that lawyer-mediators should frame such proposals not as advice, but rather as a prediction of where there might be a ZOPA (zone of possible agreement). Lawyer-mediators should also distinguish such proposals from \u201ccase evaluation,\u201d which is not advice but rather a prediction of how the court would likely rule if the case went to trial; this too needs to be properly described to the parties \u2014 especially unrepresented parties. The opinion states: \u201cA mediator may offer an opinion as to how a tribunal is likely to rule on an issue, but the lawyer-mediator should not state or imply that a settlement is in the parties\u2019 best interest because a tribunal is likely to decide adversely to the party.\u201d<\/p>\n

The opinion requires \u201chonesty,\u201d but isn\u2019t that self-evident as an ethical requirement? What\u2019s the problem that the opinion is trying to solve? <\/strong><\/p>\n

The opinion draws a useful distinction between a lawyer\u2019s duty of honesty under Rule 4.1 and Rule 8.4(c). Under the former, lawyers \u2014 when representing clients \u2014 are allowed to lie about settlement authority to a third party (such as stating that \u201cx\u201d dollars is the client\u2019s \u201cbottom line\u201d when the actual number is \u201cy\u201d dollars). Comment 2 of Rule 4.1 describes such \u201cpuffing\u201d as follows: \u201cUnder generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact.\u201d But, in mediation, this leeway applies only to the lawyers representing the parties; lawyer-mediators are not allowed to \u201cpuff\u201d regarding the parties\u2019 settlement positions, because the lawyer-mediator\u2019s duty of honesty is governed by Rule 8.4(c) (quoted above), which contains no carveout for puffing in negotiations. Accordingly, when a lawyer-mediator is asked in a private caucus session whether the other side\u2019s professed \u201cbottom line\u201d is genuine, she can decline to answer, but she cannot give an answer that she knows, or reasonably should know, is false.<\/p>\n

How does the opinion compare to other ethics rules for mediators? <\/strong><\/p>\n

It\u2019s pretty much the same. For example, the Model Standards of Conduct for Mediators (jointly promulgated by the American Bar Association, American Arbitration Association, and Association for Conflict Resolution) emphasize honesty and prohibit mediators from \u201cknowingly misrepresent[ing] any material fact or circumstance in the course of a mediation.\u201d The model standards also stress party \u201cself-determination\u201d and describe as problematic \u201cmixing the role of mediator and the role of another profession.\u201d Thus, if a lawyer-mediator\u2019s recommendation of a settlement could be reasonably interpreted by a party as legal advice, such a recommendation would violate the model standards\u2019 prohibition of mixing roles.<\/p>\n

Are ABA ethics opinions binding on all lawyers? <\/strong><\/p>\n

In the United States, the regulation of lawyers is done by the individual states, and each state is free to adopt their own rules. Although the MRPC have been adopted by most states with only slight variations, and although most states tend to adhere to the ABA\u2019s formal opinions, Opinion 518 is not self-enforcing and therefore serves only as an advisory opinion unless and until it is adopted by a state as a valid application of the legal ethics rules enacted in that state.<\/p>\n

What about the many mediators who are not lawyers? Could they be affected by this opinion? <\/strong><\/p>\n

Not directly. But because of the large numbers of lawyers serving as mediators and the influence of the ABA\u2019s ethics opinions on lawyers\u2019 conduct, the opinion could have at least a ripple effect on the interpretation of ethical standards in the mediation community.<\/p>\n

So, what\u2019s the bottom line on this opinion? Should mediators and people who use mediation be concerned? <\/strong><\/p>\n

The opinion\u2019s insistence on making sure that clients understand the difference between the role of lawyer and the role of mediator is nothing new. It has been part of the MRPC since the adoption of Rule 2.4 in 2002. Likewise, the opinion\u2019s admonition against the lawyer-mediator providing \u201clegal advice\u201d is not new; many states have codes of ethics for mediators that prohibit such advice. The opinion\u2019s clarification about \u201cpuffing\u201d and honesty is new but unsurprising, given the emphasis on honesty in the model standards. What is both new and surprising is the opinion\u2019s caution against stating that \u201ca proposed settlement is in a party\u2019s best interest.\u201d To be sure, the opinion then softens that admonition by stating that \u201cthe lawyer-mediator may, of course, provide truthful information that helps the parties to conclude for themselves, or even makes it obvious to them, whether a proposed resolution is in their best interest, given their objectives.\u201d Bottom line: the opinion will likely cause lawyer-mediators to be more circumspect about recommending specific settlements, as opposed to simply discussing the pros and cons of a specific settlement.<\/p>\n

David A. Hoffman is an attorney, mediator, arbitrator and founding member of Boston Law Collaborative, where he handles cases involving family, business, employment and other disputes. He is past chair of the American Bar Association Section of Dispute Resolution. He was not involved in the ABA committee\u2019s deliberations on Opinion 518.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

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