Opinion #137. Preparation of Documents Ancillary to a Settlement Agreement by Mediator

Issued by the Professional Ethics Commission

Date Issued: December 1, 1993

Question

The Commission has been asked the following question:
When a lawyer-mediator has drafted a settlement agreement in a pro-se case (after advising and encouraging the unrepresented parties to seek independent legal advice prior to executing the agreement), is it proper for the lawyer‑mediator to prepare a divorce judgment for the parties and other ancillary documents such as promissory notes, deeds, etc.?

Opinion

The Commission concludes that a lawyer‑mediator operating under the constraints of Maine Bar Rule 3.4(h) may prepare documents ancillary to a settlement agreement, such as a divorce judgment, promissory note, and deed, provided such documents merely reflect the parties’ resolution of the matter and all of the other conditions of Rule 3.4(h) have been satisfied.

Rule 3.4(h), a recent amendment to the Maine Bar Rules, governs the activities of lawyers who serve as full or part‑time mediators and provides in pertinent part:

(2) The role of mediator does not create a lawyer‑client relationship with any of the parties and does not constitute representation of any of them. The lawyer shall not attempt to advance the interest of any of the parties at the expense of any other party.
(4) The lawyer may draft a settlement agreement or instrument reflecting the parties’ resolution of the matter but must advise and encourage any party represented by independent counsel to consult with that counsel, and any unrepresented party to seek independent legal advice, before executing it.

As the rule itself and the Reporter’s notes make clear, a lawyer‑mediator is not engaging in representation of any of the participants in mediation and may not advance the interest of any party at the expense of others. Subject to that limitation, and to the additional requirement that the parties to mediation be advised and encouraged to consult with counsel, a lawyer‑mediator is expressly permitted to “draft a settlement agreement or instrument reflecting the parties’ resolution of the matter.” We see nothing in this language indicating that only one such agreement or instrument or only a “settlement agreement” is contemplated. On the contrary, the rule expressly permits the drafting of an “instrument,” and the key criteria are found in the requirements of neutrality and that the agreement or instrument reflect the parties’ resolution of the matter. The question presented presupposes that an agreement and several additional instruments may be necessary to reflect fully the parties’ resolution of the matter.

Absent a draft from the mediator, the decree, note, mortgage, and the like, would presumably be drafted by a lawyer for one of the parties and reviewed by another, perhaps necessitating a return to the mediator to resolve issues unearthed by the drafting process. Provided the conditions of Rule 3.4(h) have been met, including the condition that the parties to mediation be advised and encouraged to consult with their counsel or to seek independent legal advice if not already represented, the Commission concludes it is permissible for the mediator to draft such ancillary instruments as may be required to fully reflect the parties’ resolution of their dispute.


Enduring Ethics Opinion