Lawyer Mediator Drafting of Agreements

As I just sent to our listserve as well, I am advising a committee for our state bar about the role of lawyer-mediators in drafting marital settlement agreements.  The committee has already reached a consensus that it would like to permit mediators to draft mediation settlement agreements in family law cases.  The key question for the committee is whether to permit this under a joint representation model (in which the lawyer is representing both parties under Rule 2.4 and other rules after the clients waive conflicts) or under a neutral representation model in which the mediator is not representing either party and parties are informed about that “limited” representation which would permit the mediator to draft.

We (read my RA’s) have already done a 50 state survey as to what is going on and there are examples of each in action (i.e. New York is a joint model and Maine is a neutral model and Connecticut seems to permit drafting without picking one of these).  What I am looking for is any practice experience or opinions about those models in action.  The committee would prefer to go with a neutral model and they want to make sure there are no hidden problems or concerns with that.

Any help, examples, thoughts or opinions are appreciated!

 

6 thoughts on “Lawyer Mediator Drafting of Agreements”

  1. The North Carolina has issued an opinion that the drafting of binding contracts for pro se parties is the practice of law and that there is a non-consentable conflict that cannot be waived by the parties.

  2. Andrea,
    Glad to see some proactive approaches to the issue. I understand the “joint representation” idea, which is well-established in the RPCs (or at least Washington’s version where I practice).
    Yet I can’t square the idea of “neutral representation” with what a neutral is, and what a representative is, as those two terms are defined and established in the RPCs.
    In the RPC Preamble, we see that representatives provide legal services to their clients as advisors, advocates, negotiators and evaluators. Neutrals help the parties resolve their disputes; elsewhere in the RPCs we see that the parties are not clients of the neutral and the services provided are not legal services (they’re “law-related services.”)
    The RPC Preamble explicitly distinguishes the role of neutral from the role of the representative, using it to define the role of neutral as “a non-representational role.”
    The roles of neutrals and representatives are juxtaposed by definition. When one is acting as a neutral, one is not in a representational role. When one is acting as a representative, one is not in a neutral role. The two terms are mutually exclusive.
    So I’m left completely at sea what a “neutral representative could be.” I can’t squre it with the RPCs. It would appear to describe an impossibility: a “non-representational representative.” (I’m envisioning something maybe like a Pushme-Pullyou?)
    I do understand how, when people are discussing possibilities casually and new ideas are generated, we use terms we’re familiar with and mash them up together to describe new things. And that may be what is happening here. Yet the paradox created by the term “neutral representative” requires, in the least, a whole lot of definition to be understandable.
    Even without seeing more than just the term “neutral representative,” I think I can be charitable to the idea and may understand what’s behind it. (Though I’ve been in the litigation world for decades, I’ve also been in the world of facilitative, interest-based models and styles.) So I think I know what’s going on. But I’d be guessing.
    And however I might describe it, I would not call it “neutral representation.” That just takes two very meaningful, mutually-exclusive roles, well-established in the RPCs, and creates something that I wouldn’t even begin to know what it means other than that it is completely different.
    If using the term “neutral representative,” you would have to define it so clearly and explicitly integrate it with – and distinguish it from – the RPC Preamble’s concepts of neutrality and representation. The same terms – neutral and representative – would have vastly different meanings, even contradictory ones, depending on context. I can’t imagine how you would approach that drafting task without the representation-snake swallowing its neutral- tail and it all disappearing in a puff of smoke.
    (Back before 2006, we actually had in Washington’s version of the RPCs an additional role beyond neutrals and representatives: an “intermediary” role. Basically formed on joint representation, it allowed joint representation when there were still issues to address. It was cumbersome, I don’t think anyone ever used it, but there may be something useful in it.)

    1. If two business persons came to you and said “We want to work together to build a company and we want you to draft the documents spelling out our agreement so we will all be clear about our roles and responsibilities into the future,” how would you describe your representation of these two people? As they have no current dispute, seeming to have resolved any issues they may have had at any time in the past, are you representing them but in a fashion that is neutral as to between the two of them? If no disputes arise, you complete your drafting and everyone is happy. If disputes arise in the drafting process, you give them what information you can and tell them to retain separate counsel as to analyzing and advising how each could or should proceed. Does that work for you?

  3. Dear Professor Schneider,
    We in the state of Washington have been engaged in a discussion about our State Bar’s Ethics Committee’s view on your subject. Washington’s Committee took a not too thoughtful legalistic position in my view, and in the view of others. You can find four pages of on line discussion at
    http://wsba-adr.org/group/advisory-opinion-2223-discussion-group?commentId=4703052%3AComment%3A34580&xg_source=msg_com_group
    We are pleased to see the ABA and other state interest in this subject reflected in your note. I personally believe we are transitioning in our thinking and “being-ness” as lawyers, melding into a future where feelings and the “spirit of the law” continue to find new expression along with rule keeping and logical analysis. Mediaton, conflict analysis, and conflict counseling are certainly providing such opportunities for me.
    Respectfully,

    John Shaffer

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.