Lawyer-Mediator’s Preparation of Contract for Pro Se Parties to Mediation
Opinion rules that a lawyer-mediator may not draft a business contract for pro se parties to mediation.
May a mediator, who is also a lawyer, draft a business contract for two business proprietors at the conclusion of a successful mediation concerning a matter that is not currently the subject of litigation when neither party is represented by individual counsel?
No. It is a non-consentable conflict of interest.
Rule 1.12(a) allows a lawyer to represent a party in connection with a matter in which the lawyer participated personally and substantially as a mediator if all parties to the proceeding give informed consent, confirmed in writing. However, under Rule 1.7(a), joint representation of two parties to an agreement presents a concurrent conflict of interest even if the lawyer-mediator has their consent.
Although Rule 1.7(b) provides for circumstances under which a lawyer may represent joint clients, an analysis of the risks associated with the proposed joint representation leads to the conclusion that such representation is not appropriate. Therefore, the lawyer-mediator should not draft the business contract.
When contemplating joint representation, a lawyer must consider whether the interests of the parties will be adequately protected if they are permitted to give their informed consent to the representation, and whether an independent lawyer would advise the parties to consent to the conflict of interest. Representation is prohibited if the lawyer cannot reasonably conclude that he will be able to provide competent and diligent representation to all clients. See Rule 1.7, cmt. . As stated in comment  to Rule 1.7, the representation of multiple clients “is improper when it is unlikely that impartiality can be maintained.”
The complex issues that must be addressed when crafting a comprehensive business contract may result in adverse interests. Even if the parties agree on the broad outlines of a business contract at the conclusion of the mediation, a disinterested lawyer will not be able to conclude that the interests of each party can be completely represented. With respect to the terms on which there appear to be agreement, one or both parties may benefit from a disinterested lawyer’s advice as to whether the agreement meets with the party’s legitimate objectives, and what other procedural alternatives may be available to achieve more favorable terms. In the instant inquiry, neither party is represented by individual counsel.
Joint representation could lead to questions about the integrity of the mediation process. The lawyer’s duty to provide each client with necessary and appropriate advice might require informing one party that they made a “bad deal” during the mediation process. It is untenable for a lawyer to counsel a client that an agreement the lawyer-mediator has assisted him to reach in mediation may not be in that client’s best interests. If the ultimate agreement turns out to be one-sided and unfavorable to one party, the lawyer-mediator’s role could be closely scrutinized.
Finally there is the risk that the proposed joint representation will fail or that the business contract will be the subject of future litigation between the two parties. In either event, the parties will have to retain new lawyers for the subsequent litigation.
For the reasons cited above, the lawyer-mediator in the facts presented may not jointly represent both parties by drafting their new business contract.
Regardless of the above analysis, the lawyer-mediator will be governed by the Supreme Court’s Standards of Professional Conduct for Mediators, which may also prohibit the lawyer’s representation of one or more of the parties following the mediation.
This opinion does not prohibit a lawyer-mediator from assisting the parties in preparing a written summary reflecting the parties’ mutually acceptable understanding of the issues resolved in the mediation, as long as the lawyer-mediator does not represent to the pro se parties that the summary is being prepared as a legally enforceable document.