Mediators’ Duty of Care in Drafting Agreements

Earlier this morning the Standing Committee on Mediator Ethical Guidance released Opinion SODR 2010-1 entitled Mediators’ Duty of Care in Drafting Agreements.  A copy of the opinion in full can be accessed here.  Below are the specific query and subquestions the committee received. 

Questions:

A married couple with one minor child has decided that they would like to get an uncontested no fault divorce and want joint custody over their minor child. The parties have decided to jointly retain you as a Mediator to mediate the terms of a property settlement, custody, and support agreement. The mediation is successful, and the parties reach an agreement concerning the division of all of their property and the custody, visitation arrangements, and child support for their minor child. The parties then want the Mediator to prepare the agreement for them. Neither party wants to retain his or her own attorney to prepare the agreement or to have their attorneys review the agreement if prepared by the Mediator.

 Question 1A: If the Mediator is a lawyer, should he or she prepare the agreement under these circumstances and if so, what are the ethical responsibilities and constraints, if any, that should be considered in connection with the preparation of the agreement?

 Question 1B: What are the Mediator’s ethical duties and responsibilities with respect to the parties under these circumstances?

 Question 1C: Would the ethical considerations be different if the mediation only involved the division of property and not custody, visitation, and support for the minor child also?

 Question 1D: If the Mediator was not a lawyer, are there any different ethical considerations that would apply?

As to question 1D, I have to add my two cents.  Any non-lawyer mediator is well advised to know the UPL issues in her state forwards and backwards.  For example, in my state (Arizona) the bar’s new UPL counsel is of the opinion that acting as a scrivener is the practice of law if what’s written affects the mediating parties’ legal rights in any way.  And, she made it clear that if she finds that any non-lawyer mediators acting as scriveners, she is going to prosecute those individuals.

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