Reconsideration and clarification of Formal Ethics Opinions 83-F-39 and 85-F-98 concerning divorce mediation as an alternate dispute resolution process.
This opinion is issued to clarify the Bar's view of the growing use of mediation, an alternative means of resolving disputes, by attorneys and non-attorneys. Further, this opinion sets out to resolve the confusion arising from the application of Formal Ethics Opinions 83-F-39 and 85-F- 98, addressing issues surrounding the process of divorce mediation.
The threshold question arising from the two Formal Ethical Opinions is whether or not divorce mediation is to be considered the practice of law for purposes of deciding who may or may not be
a practitioner -- and with whom; and if different standards of practice bind the lawyer apart from the non-lawyer divorce mediator.
Mediation in Opinion 85-F-98 is offered by a non-profit, religious based organization; in 83-F-39 it is offered by a for-profit professional business.
The religious organization handles a variety of disputes, including family mediation, with an emphasis on preserving a positive relationship between the disputants while resolving the conflict. In marital disputes headed for divorce, the main thrust is reconciliation of the parties and the preservation of the marriage. It is presumed its mediators assist in settling the issues attending divorce if reconciliation is not possible.
The mediation service referred to in FEO 83-F-39 is divorce mediation, a highly specialized subcategory of mediation. Its practitioners have organized professional associations and task forces
which have developed and/or approved divorce mediation training programs, established a Standard of Practice of Family and Divorce Mediation, and is currently exploring professional
requirements. Divorce mediation's emphasis is helping parties already in the process of divorce settle the issues arising from the divorce process in a cooperative manner, especially in cases where there are children of the marriage in continued need of cooperative co-parenting.
"It appears that the service offered is to assist individuals in dissolving a marriage
whereby the individuals share in a non-adversarial decision making process with
an objective of reaching a mutual agreement in matters involving division of real
and personal property, spousal support, child support, child custody and visitation
rights." Formal Ethics Opinion 83-F-39 at page 2.
The Academy of Family Mediators, the membership organization for family mediators, has established the Standards of Practice for Family and Divorce Mediators whose preamble reads in part:
"Mediation is a family-centered conflict resolution process in which an impartial
third party assists the participants to negotiate a consensual and informed
settlement. In mediation, whether private or public, decision-making authority
rests with the parties. The role of the mediator includes reducing the
obstacles to communication, maximizing the exploration of alternatives, and addressing
the needs of those it is agreed are involved or affected.
Mediation is based on principles of problem solving that focus on the needs and
interest of the participants; fairness; privacy; self-determination; and the best
interests of all family members..."
The analysis of the service offered in both instances that relate to legal considerations, as stated in the opinions, apply equally to both types of practices:
"... The mediators do not represent either party individually and are committed to
assisting them in reaching a settlement which is mutually acceptable. The
individuals are informed that the mediators do not and will not provide legal
advice or legal services. They are informed and encouraged to seek independent
legal counsel and to retain an attorney at the onset of mediation. When an
agreement is reached the terms of the settlement are to be submitted to the
attorneys to be legally drafted and executed." 83-F-3, page 2.
Formal Ethics Opinion 85-F-98 states at page 2:
"The parties are told at the outset of the conciliation process that no legal advice
will be given to them by CCS (Christian Conciliation Service) or any lawyer
involved in the process, and that any lawyers involved represent neither party to
the dispute. The parties are encouraged to seek outside legal advice before
beginning the conciliation process and are told that CCS does not attempt to
protect their legal rights. Any legal advice, other than the most general, legal
drafting and the like come from outside, independent attorneys.
Any lawyer who serves ... cannot later represent any party to the dispute on any
matter related to or stemming from those things discussed ..."
"... To insure that these guidelines are understood and fulfilled, each party to the
conciliation process signs an agreement which outlines the procedures used in the
CCS process and the fact that CCS does not protect the legal rights of the parties,
nor do any of the attorneys engaged in the conciliation process ..."
"... When the parties agree to (mediation), they sign an agreement stating that they
understand that any matters discussed during conciliation (mediation) are
confidential and will not bediscussed with anyone outside of the conciliation (mediation) process. The parties
also agree, as a prerequisite to conciliation (mediation), that they will not use
statements made during mediation in subsequent lawsuits and that they will not
subpoena CCS records, or CCS staff members ... for any suit. The same rules
apply to any and all ...whether or not they are attorneys."
These guidelines and principles are stated in substantive form in both the Academy of Family Mediators' Standards of Practice for Family and Divorce Mediation and in the Task Force on Mediation of the Section of Family Law of the American Bar Association's Divorce and Family Mediation Standards of Practice. The Family Law Section of the ABA adopted a resolution in 1983 "expressing its belief that divorce mediation could indeed be a helpful means of conflict resolution if practiced with care in accordance with publicly understood and professionally adopted norms of behavior." Standards of Practice at page ix.
"The mediator shall inform the participants of the need to employ independent
legal counsel for advice throughout the mediation process. The mediator shall
inform the participants that the mediator cannot represent either or both of them in
a marital dissolution or in any legal action. The mediator cannot act as lawyer for
either party or for them jointly and should make that clear to both parties."
Standard I, G.
"The mediator may define the legal issues, but shall not direct the decision of the
mediation participants based upon the mediator's interpretation of the law as
applied to the facts of the situation. The mediator shall endeavor to assure that the
participants have a sufficient understanding of the appropriate statutory and case
law as well as a local judicial tradition, before reaching an agreement by
recommending to the participants that they obtain independent legal
representation during the process." Standard IV, C.
Provided the divorce mediator incorporates in substance the above stated principles and guidelines of separating legal advice and services from the mediation process and makes this clear from the outset to the client/consumer, divorce mediation is not the practice of law. Thus non-lawyers are not prohibited from practicing divorce or any other form of mediation.
Private for-profit mediation; private not-for-profit mediation; or public funded voluntary or court ordered mediation should make it sufficiently clear to the client sector that independent legal
counsel be engaged for legal advice, drafting, and services and that no distinction exists as to the religious or secular nature, profit or non-profit, private or public status of the provider of mediation services for purposes of this opinion.
Of important consideration is whether or not the lawyer may co-mediate with a non-lawyer. Nothing in this opinion prohibits a lawyer and non-lawyer co-mediating, for so long as it is made clear that neither will be performing legal work.
The licensed attorney mediator, nonetheless, remains bound by the Code of Professional Responsibility as any lawyer participating in a law related profession, i.e. real estate, insurance, accounting. A licensed attorney may not participate in a partnership, corporation or any other business entity with a non-lawyer for the purpose of divorce mediation while at the same time conducting a law practice. To do so would entail the risk of confusing the client as to whether or not she/he had legal protection for the protection of her/his rights.
Also, the inactive, non-practicing attorney still licensed to practice law will be held to the scrutiny of the Code of Professional Responsibility for his/her course of conduct to retain the license or resume active status.
Nothing, however, in this opinion prohibits a lawyer consulting with a non-lawyer for the purpose of co-mediation provided the lawyer does not hold him/herself out as providing legal services while mediating between the parties.
The Academy of Family Mediators, the Society of Professionals in Dispute Resolution, and the Association of Family and Conciliation Courts all acknowledge the distinction between the practice of mediation and the practice of law. While the art of mediation has attracted attorneys, mental health professionals, certified financial planners and educators, the practice of mediation
is not the practice of any of those disciplines. Practioners of those disciplines bring to the practice of mediation valuable skills and knowledge, but the art of mediation requires specific and separate how-to skills.
This 14th day of December , 1990.
W. J. Michael Cody
Thomas H. Rainey
Walker T. Tipton
APPROVED AND ADOPTED BY THE BOARD