ABA Issues Formal Opinion – A Lawyer-Mediator Must Avoid Misleading Communications When Acting as a Neutral

On October 15, 2025, the ABA issued formal opinion 518, entitled, “A Lawyer’s Duties to Avoid Misleading Communications When Acting as a Third-Party Neutral Mediator” https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/ethics-opinions/aba-formal-opinion-518.pdf

In this opinion, the the ABA states that in the role of mediator, lawyers cannot engage in deception about the parties’ bottom lines – or about anything else.

The Opinion summary reads as follows:
“Rule 2.4 of the ABA Model Rules of Professional Conduct addresses a lawyer’s duties when acting as a third-party neutral and defines third-party neutral as a lawyer who assists two or more persons – who are not clients of the lawyer – to reach a resolution of a dispute. Under Rule 2.4(b), a lawyer acting as a third-party neutral must inform unrepresented parties that the lawyer-mediator does not represent them. Paragraph (b) also requires the lawyer-mediator to explain the difference between the lawyer-mediator’s role as a third-party neutral and the role of a lawyer representing a client in a mediation when the lawyer knows or reasonably should know that the parties do not understand the mediation process. Therefore, in most instances, unless the parties are sophisticated consumers of mediation services, the lawyer-mediator should ensure that all persons involved in the mediation understand the role of the lawyer-mediator.

Although a lawyer is not subject to many of the Model Rules when acting as a third-party neutral mediator, a lawyer-mediator is subject to Rule 8.4(c), which prohibits a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. A lawyer-mediator may not give credence to statements the lawyer-mediator knows to be false or personally make statements that the mediator knows to be false.”

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