SCR 20:2.4. Lawyer serving as 3rd-party neutral

Lawyer serving as 3rd-party neutral

(a) A lawyer serves as a 3rd-party neutral when the lawyer assists

two or more persons who are not clients of the lawyer to reach a

resolution of a dispute or other matter that has arisen between them.

Service as a 3rd-party neutral may include service as an arbitrator, a

mediator or in such other capacity as will enable the lawyer to assist the

parties to resolve the matter.

(b) A lawyer serving as a 3rd-party neutral shall inform

unrepresented parties that the lawyer is not representing them. When the

lawyer knows or reasonably should know that a party does not understand

the lawyer's role in the matter, the lawyer shall explain the difference

between the lawyer's role as a 3rd-party neutral and a lawyer's role as one

who represents a client.

(c)(1) A lawyer serving as mediator in a case arising under ch.

767, stats., in which the parties have resolved one or more issues being

mediated may draft, select, complete, modify, or file documents

confirming, memorializing, or implementing such resolution, as long

as the lawyer maintains his or her neutrality throughout the process and

both parties give their informed consent, confirmed in a writing signed

by the parties to the mediation. For purposes of this subsection,

informed consent requires, at a minimum, the lawyer to disclose to each

party any interest or relationship that is likely to affect the lawyer's

impartiality in the case or to create an appearance of partiality or bias

and that the lawyer explain all of the following to each of the parties:

a. The limits of the lawyer's role.

b. That the lawyer does not represent either party to the

mediation.

c. That the lawyer cannot give legal advice or advocate on behalf

of either party to the mediation.

d. The desirability of seeking independent legal advice before

executing any documents prepared by the lawyer-mediator.

lawyer explain all of the following to each of the parties:

a. The limits of the lawyer's role.

b. That the lawyer does not represent either party to the

mediation.

c. That the lawyer cannot give legal advice or advocate on behalf

of either party to the mediation.

d. The desirability of seeking independent legal advice before

executing any documents prepared by the lawyer-mediator.

(2) The drafting, selection, completion, modification, and filing

of documents pursuant to par. (1) does not create a client-lawyer

relationship between the lawyer and a party.

(3) Notwithstanding par. (2), in drafting, selecting, completing

or modifying the documents referred to in par. (1), a lawyer serving as

mediator shall exercise the same degree of competence and shall act

with the same degree of diligence as SCRs 20:1.1 and 20:1.3 would

require if the lawyer were representing the parties to the mediation.

(4) A lawyer serving as mediator who has prepared documents

pursuant to par. (1) may, with the informed consent of all parties to the

mediation, file such documents with the court. However, a lawyer who

has served as a mediator may not appear in court on behalf of either or

both of the parties in mediation.

(5) Any document prepared pursuant to this subsection that is

filed with the court shall clearly indicate on the document that it was

"prepared with the assistance of a lawyer acting as mediator."

WISCONSIN COMMENT

Mediation is a process designed to resolve disputes between two or more parties

through agreement facilitated by a neutral person. Although many lawyers

routinely act as mediators, there has been some concern about the applicability of

the SCRs to lawyers acting as mediators. However, the selection, drafting,

completion, modification, or filing of legal documents or agreements to

memorialize or implement a mediated settlement does constitute the practice of

law and is regulated by SCR Chapter 23. See SCR 23.01

person. Although many lawyers

routinely act as mediators, there has been some concern about the applicability of

the SCRs to lawyers acting as mediators. However, the selection, drafting,

completion, modification, or filing of legal documents or agreements to

memorialize or implement a mediated settlement does constitute the practice of

law and is regulated by SCR Chapter 23. See SCR 23.01. The purpose of

subsection (c) is to clarify that a lawyer serving as mediator in a Chapter 767

proceeding may, while acting in that capacity, memorialize the outcome of the

mediation, if it can be done without compromising his or her neutrality and that,

by doing so, the lawyer does not assume a client-lawyer relationship with either

party. The lawyer serving as mediator may not at any stage of the process attempt

to advance the interests of one party at the expense of any other party.

Although a lawyer acting as mediator should strive to anticipate the

issues and resolve them prior to documenting the outcome of the mediation, the

process of documenting itself may illuminate or create previously unforeseen

issues. For this reason, the mediator should make it clear to the parties that the

process of documentation is part of the mediation and the mediator must maintain

neutrality throughout that process.

Likewise, even after documents confirming, memorializing, or

implementing the resolution of issues have been finalized, other previously-

unidentified or unresolved issues may arise. The mediator may, as an extension

of the original mediation, continue in a neutral capacity to assist the parties in

resolving and memorializing those issues. While this rule does not require the

mediator to resolve or memorialize all issues, the prudent mediator may want to

consider identifying any issues the parties have intentionally left unresolved.

Documents drafted, selected, completed or modified by a mediator can

have consequences an unrepresented party might not perceive

y to assist the parties in

resolving and memorializing those issues. While this rule does not require the

mediator to resolve or memorialize all issues, the prudent mediator may want to

consider identifying any issues the parties have intentionally left unresolved.

Documents drafted, selected, completed or modified by a mediator can

have consequences an unrepresented party might not perceive. Although an

attorney acting as neutral mediator may attempt to explain those consequences to

the parties in mediation, he or she does not stand in a client-lawyer relationship

with either party and may not give legal advice to either or both parties while

acting in that neutral capacity. Moreover, because the line between discussing

consequences and dispensing advice is not always clear, a lawyer acting as

mediator who chooses to explain those consequences should take care to avoid

offering or appearing to offer legal advice. For these reasons, and to emphasize to

the parties that the lawyer acting as mediator does not represent the parties,

subsection (c)(1)(d) requires an attorney who has mediated a dispute between

unrepresented parties to recommend that each seek independent legal advice

before executing the documents that attorney has drafted, selected, completed, or

modified.

Notwithstanding that no client-lawyer relationship is created when a

lawyer-mediator drafts documents pursuant to this rule, subsection (c)(3) imposes

duties of competence and diligence in connection with the drafting of such

documents. A lawyer who fails to fulfill such duties violates SCR 20:2.4(c)(4).

Filing documents prepared pursuant to this subsection in court can often

be accomplished most efficiently by a lawyer familiar with the documents and, as

long as done with the consent of the parties to the mediation, may be accomplished

by the mediator without impairing his or her neutrality

he drafting of such

documents. A lawyer who fails to fulfill such duties violates SCR 20:2.4(c)(4).

Filing documents prepared pursuant to this subsection in court can often

be accomplished most efficiently by a lawyer familiar with the documents and, as

long as done with the consent of the parties to the mediation, may be accomplished

by the mediator without impairing his or her neutrality. However, any appearance

by a lawyer in court on behalf of one or more parties is so closely associated with

advocacy that it could compromise the appearance of neutrality and/or provide an

occasion to depart from it. For this reason, although a lawyer who has served as

a mediator may file documents with the court, such a lawyer may not appear in

court on behalf of one or both parties. A lawyer who has served as a third party

neutral, such as a mediator in a matter, may not thereafter represent any party at

any stage of the matter. See SCR 20:1.12.

Because the lawyer-mediator does not have a client-lawyer relationship

with any of the parties, SCR 20:1.2(cm) does not apply. Subsection (5) makes it

clear that the lawyer-mediator must make an equivalent disclosure. Filing of

documents by a lawyer-mediator pursuant to this rule does not constitute an

appearance in the matter.

ABA COMMENT

[1] Alternative dispute resolution has become a substantial part of the civil justice system.

Aside from representing clients in dispute-resolution processes, lawyers often serve as third-party

neutrals. A third-party neutral is a person, such as a mediator, arbitrator, conciliator or evaluator, who

assists the parties, represented or unrepresented, in the resolution of a dispute or in the arrangement of

a transaction. Whether a third-party neutral serves primarily as a facilitator, evaluator or decision

maker depends on the particular process that is either selected by the parties or mandated by a court

rty neutral is a person, such as a mediator, arbitrator, conciliator or evaluator, who

assists the parties, represented or unrepresented, in the resolution of a dispute or in the arrangement of

a transaction. Whether a third-party neutral serves primarily as a facilitator, evaluator or decision

maker depends on the particular process that is either selected by the parties or mandated by a court.

[2] The role of a third-party neutral is not unique to lawyers, although, in some court-

connected contexts, only lawyers are allowed to serve in this role or to handle certain types of cases.

In performing this role, the lawyer may be subject to court rules or other law that apply either to third-

party neutrals generally or to lawyers serving as third-party neutrals. Lawyer-neutrals may also be

subject to various codes of ethics, such as the Code of Ethics for Arbitration in Commercial Disputes

prepared by a joint committee of the American Bar Association and the American Arbitration

Association or the Model Standards of Conduct for Mediators jointly prepared by the American Bar

Association, the American Arbitration Association and the Society of Professionals in Dispute

Resolution.

[3] Unlike nonlawyers who serve as third-party neutrals, lawyers serving in this role may

experience unique problems as a result of differences between the role of a third-party neutral and a

lawyer's service as a client representative. The potential for confusion is significant when the parties

are unrepresented in the process. Thus, paragraph (b) requires a lawyer-neutral to inform unrepresented

parties that the lawyer is not representing them. For some parties, particularly parties who frequently

use dispute-resolution processes, this information will be sufficient. For others, particularly those who

are using the process for the first time, more information will be required

arties

are unrepresented in the process. Thus, paragraph (b) requires a lawyer-neutral to inform unrepresented

parties that the lawyer is not representing them. For some parties, particularly parties who frequently

use dispute-resolution processes, this information will be sufficient. For others, particularly those who

are using the process for the first time, more information will be required. Where appropriate, the

lawyer should inform unrepresented parties of the important differences between the lawyer's role as

third-party neutral and a lawyer's role as a client representative, including the inapplicability of the

attorney-client evidentiary privilege. The extent of disclosure required under this paragraph will

depend on the particular parties involved and the subject matter of the proceeding, as well as the

particular features of the dispute-resolution process selected.

[4] A lawyer who serves as a third-party neutral subsequently may be asked to serve as a

lawyer representing a client in the same matter. The conflicts of interest that arise for both the

individual lawyer and the lawyer's law firm are addressed in Rule 1.12.

[5] Lawyers who represent clients in alternative dispute-resolution processes are governed by

the Rules of Professional Conduct. When the dispute-resolution process takes place before a tribunal,

as in binding arbitration (see Rule 1.0(m)), the lawyer's duty of candor is governed by Rule 3.3.

Otherwise, the lawyer's duty of candor toward both the third-party neutral and other parties is governed

by Rule 4.1.

ADVOCATE