When a licensed attorney happens to be serving as mediator, ethical questions can arise when it comes time to draft or write the mediated settlement agreement (“MSA”). These MSAs come in all kinds of varieties. Generally speaking, many of the boilerplate provisions used in an MSA in one field or practice of law are more or less the same, while other provisions of the Agreement necessary to resolve the dispute may differ relative to unique facts of the particular case. In fact, in the spectrum of family law, MSA’s are frequently checkoff sheets with provisions side-by-side with boxes in which there is placed a checkmark, indicating that the provision is being used.
Sometimes the provisions are put together by one of the counsel; other times each counsel presents provisions. Even so, it is not uncommon for the mediator to draft the MSA. Whichever way it happens, this writing and review process can result in significant back and forth dialogue between the counsel and the mediator to determine what provisions are kept, added or removed. That process is part of the mediation itself– a quality conversation directed toward resolving the dispute, ideally in writing.
When the attorneys present a proposed MSA to the mediator, the mediator may then suggest adding additional provisions. The mediator may edit the MSA. When a mediator drafts the MSA, sometimes slight changes are made by the parties and their respective counsel, while other times the changes may not occur at all, or they may be significant. There is ample opportunity to review.
What about where the provision added by a mediator may, from some perspectives, happen to advantage one party more than another? A new Texas Center for Legal Ethics Opinion 675, published today, asks whether the mediator is getting too involved or taking a side, or going outside the scope of mediating when the mediator edits or drafts the MSA. (See https://legalethicstexas.com/Ethics-Resources/Opinions/Opinion-675).
“May a Texas lawyer, acting as a mediator, prepare and provide the parties to the mediation a proposed written agreement that memorializes the terms of the parties’ agreement reached during the mediation?” Taking that nuance further, “If so, may the lawyer-mediator propose terms for inclusion in the written agreement in addition to the specific terms agreed to by the parties during the mediation?”
It had previously been found in Ethics Opinion 583 that “Under the Texas Disciplinary Rules of Professional Conduct, a lawyer may not agree to serve both as a mediator between parties in a divorce and as a lawyer to prepare the divorce decree and other necessary documents to effect an agreement resulting from the mediation. Because a divorce is a litigation proceeding, a lawyer is not permitted to represent both parties in preparing documents to effect the terms of an agreed divorce.” So the precedent for drafting is indeed present.
The Ethical Guidelines for Mediators (Tex. Sup. Ct. Misc. Docket No. 11-9062, April 11, 2011) (“Guidelines”), provides guidance favoring assistance with parties reaching settlement. One Comment to Guideline 1 expresses that “[a] mediator’s obligation is to assist the parties in reaching a voluntary settlement”; Guideline 14 clarifies that “[a] mediator should encourage the parties to reduce all settlement agreements to writing”. Attorney in all such situations, both EO 583 and EO675, is offering a draft for parties to consider.
At all times, however, in the opinion of this writer, the Mediator should ensure the parties 1) know whether the mediator is in fact an attorney (see prior blog) and 2) know whether the mediator is providing legal advice or advocacy on behalf of the party. The answer to number 2 should always be “no”.
EO 675 further explains that “The Texas Supreme Court has advised that a mediator should ensure that unrepresented parties understand that the mediator is not providing legal representation and that there may be risks in proceeding without independent counsel or other professional advisors. (Guideline 7, Comment; Guideline 11.) In appropriate circumstances, a mediator should encourage the parties to seek legal, financial, tax, or other professional advice before, during, or after the mediation process. (Guideline 11, Comment (a).) Further, a lawyer may owe a common law duty to warn a non-client of the lawyer’s non-representation when the lawyer is aware or should have been aware that the lawyer’s conduct would have led a reasonable person to believe that the lawyer was representing that person. Burnap v. Linnartz, 914 S.W.2d 142, 149 (Tex. App.—San Antonio 1995, writ denied). Nothing in this opinion should be read to the contrary.”
Accordingly, the opinion held that “A Texas lawyer, acting as mediator, does not violate the Texas Disciplinary Rules of Professional Conduct by preparing and providing to the parties a draft of a written agreement that memorializes the terms of the parties’ settlement reached during the course of the mediation, or by suggesting additional terms for inclusion in the draft agreement.”
The takeaway from this opinion is that attorneys serving as mediator can safely provide MSA language, offer drafting ideas, or even write what the parties (and their counsel) review and sign. This opinion does not address the non-lawyer drafting of an MSA, but does imply the importance that parties and their counsel place on the advice of those who happen to also be attorneys. Accordingly, those who are not also licensed attorneys should affirmatively express this distinction clearly to all parties at the outset before engagement. On a whole, this opinion is a victory for dispute resolution, supporting the common practice of mediator input during the drafting process.
About the author: Andrew Tolchin is an attorney and mediator in the greater Houston area, and founder of 713 Mediator, LLC and Tolchin Law Firm, PLLC.