Advocacy in Mediation: Ethics

Presented by Lawrence H. Hoover, Jr.
Presented in CLE programs “Advocacy in Mediation” 1999

AN OVERVIEW

In mediation the lawyer’s role is multifaceted and challenging. It might include advisor/counselor, negotiator, problem solver, peacemaker and advocate. In a particular matter it depends on the context and the strategy that is planned by lawyer and client. In other ADR processes, such as arbitration, neutral evaluation or mini-trial, the lawyer assumes a more traditional role of advocate.

Context is important in mediation since the nature of the dispute, the interests, goals, experience, and skills of the client, the attitude of the other party(ies) and the experience and skills of the lawyer must be considered in defining the lawyer and client’s roles. These same factors must be addressed when choosing what process is appropriate. Once a process has been chosen, the lawyer will normally take responsibility to prepare the client for participation in the process.

The Virginia Rules of Professional Conduct (“Rules”), effective in January, 2000, provide a broader framework and specific guidelines for the lawyer’s role in mediation and ADR than the Code of Professional Responsibility (“Code”). One of the new ethical requirements included in the Rules is that a lawyer shall advise the client about the appropriateness and availability of ADR. The Rules also include references to collaborative, problem-solving strategies which might be appropriate in pursuing the client’s objectives. While the Code focuses primarily on lawyer conduct in the adversary system, the Rules are broadly descriptive of the lawyer’s role, not just as zealous advocate, but as problem solver, adviser, intermediary, third party neutral and mediator. These roles are central to a vision of professionalism that promotes a more civil profession and contributes to a more civil society.

ADVISING CLIENT ABOUT ADR

General. There has been a growing acknowledgement that lawyers should discuss ADR when consulting with clients about how a dispute will be handled. The debate has been whether such advice should be required. In recent years an increasing number of jurisdictions have decided either by a specific ethical rule or in an opinion of a bar ethics committee that such advice should be required. Commentators have identified a number of provisions of the rules of professional conduct from which this obligation flows.

Virginia has recently joined the states that require a lawyer to advise a client about the appropriateness and availability of ADR. The new Virginia Rules of Professional Conduct, adopted in February, 1999, by the Virginia Supreme Court, include this requirement as well as references to situations where such advice would be appropriate. The new rules also include provisions, not included in the Virginia Code of Professional Responsibility, which recognize the lawyer as problem-solver, adviser, counselor, intermediary and third party neutral. The requirement to advise about ADR is in this broader context.

Lawyer’s Role under Rules of Professional Conduct

A. Duty To Consult with Client about Process. Rule l.2 of the Rules requires that a lawyer “abide by a client’s decisions concerning the objectives of representation,” and “consult with the client as to the means by which they are to be pursued.” This rule has no counterpart in the Virginia Code of Professional Responsibility (Virginia Code), although similar concepts were contained in several Ethical Considerations.

The interpretative comment to Rule 1.2 states that in the context of a client’s right to consult with the lawyer about the means to be used in pursuing the client’s objectives, the lawyer “shall advise the client about the advantages, disadvantages, and availability of dispute resolution processes that might be appropriate in pursuing these objectives.”

This requirement, based on the inherent responsibility of a lawyer to consult with the client about the means by which the client’s goals will be pursued, is explicit is a growing number of states, e.g., Colorado , Texas, Georgia, Hawaii, Arkansas and California. It has been a part of the “Lawyers’ Creed,” since its adoption by the Virginia Bar Association in 1994.

B. Duty To Keep Client Informed. Rule 1.4 of the Rules requires that a lawyer “keep a client reasonably informed” and “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. . . .” Keeping a client informed is included in the current Code (DR 6-101(C)); the “informed decisions” requirement is covered in Ethical Considerations (EC 7-8, 9-2).

The interpretative comment to Rule 1.4 refers to the duty of a lawyer to “advise the client about the availability of dispute resolution processes that might be more appropriate to the client than the initial process chosen.” The comment gives an example of where information obtained during a lawyer to lawyer negotiation may give rise to consideration of a process, such as mediation, where the parties themselves could be more directly involved in resolving the dispute.

C. Lawyer as Advisor. Another provision in the Rules that does not appear in the Code is Rule 2.1, which describes the lawyer as advisor. In rendering “candid advice,” a lawyer may refer “not only to law but to other considerations such as moral, economic, social and political factors that may be relevant to the client’s situation.” The Comment to the Rule cites “practical considerations, such as cost or effects on other people,” which might be more valuable to the client than “advice couched in narrow legal terms,” which “could ignore, to the client’s disadvantage, the relational or emotional factors driving a dispute. In such a case, advice may include the advantages, disadvantages and availability of other dispute resolution processes that might be appropriate under the circumstances.”

D. Collaborative Lawyering and Third Party Neutral Role. In addition to the above the rules (1) contain several references to situations where problem-solving or collaborative strategies are appropriate in a representational role and (2) set forth guidelines for the role of lawyer as third party neutral, including mediator. The inclusion of these rules provides acceptance of and guidance for an expanded role in our ethics rules for the lawyer as problem solver.

(1) Problem Solving Strategy. Rule l.l requires a lawyer to “provide competent representation to a client,” defined as having the “legal knowledge, skill, thoroughness and preparation necessary for the representation.” After discussing subject matter skills, the Comment turns to process. “Another important skill is negotiating and, in particular, choosing and carrying out the appropriate negotiating strategy. Often it is possible to negotiate a solution which meets some of the needs and interests of all the parties to a transaction or dispute, i.e., a problem solving strategy.”

Rule l.3 covers diligence, which incorporates the concept of zealous advocacy from Canon 7 of the Code. The Comment to this basic rule also refers to a “collaborative, problem-solving approach” which “is often preferable to an adversarial strategy . . . The client can be represented zealously in either setting.” These references are particularly relevant to the lawyer’s representation of a client in mediation.

Rule 2.2 (Intermediary) gives guidelines for dual or common representation, which obviously requires a collaborative, problem solving approach. This Rule, adapted from the ABA’s Model Rules of Professional Conduct, is said to have been inspired by U.S. Supreme Court Justice Louis Brandeis, who was an early advocate for the role of “lawyer for the situation,” such as a family or small business that was experiencing conflict. His position on this, which challenged the traditional adversarial paradigm, drew criticism from the ABA leaders, who opposed his nomination to the Supreme Court.

(2) Third Party Neutral. Two rules deal with a lawyer’s role as third party neutral. Since lawyers serving as third party neutrals, especially mediators, has become widespread practice, it was felt that some fundamental professional guidance is required, at least in several areas where clarification is needed. When lawyers are acting as third party neutrals they are not “practicing law” but they are still lawyers.

Rule 2.10 defines a third part neutral as one who assists parties in reaching a voluntary settlement of a dispute but does not represent a party. Rule 2.10 then sets forth several guidelines for the neutral, including role clarification with the parties and conflicts of interest. In general third party neutrals may not serve parties that they have previously represented in connection with the same subject matter, but may serve former clients in matters unrelated to the third party neutral proceeding if there is full disclosure and informed consent by all parties.

Rule 2.11 gives more detailed guidelines for the lawyer mediator, particularly regarding the circumstances in which a lawyer mediator can offer neutral evaluations as a part of the mediation process. The heart of the rule is informed consent. The lawyer mediator has the responsibility to consult with the parties in advance about the parties’ expectations regarding evaluations and whether s/he is qualified and prepared to give evaluations. The lawyer mediator must also point out to the parties that an evaluation must be incidental the facilitative role of mediator and must not interfere with mediator impartiality and the self-determination of the parties.

Perhaps the most common setting where the expectation or request for evaluation arises is where lawyers are recommending mediation and taking responsibility for choosing the mediator. The informed consent requirement will require lawyers to consult with their clients and each other to discern the clients’ needs, expectations and choices. The parties and their lawyers will then be able to find a mediator whose approach, style and experience is right for the process the parties have chosen.