Can one of the lawyers representing a disputant serve as a mediator?
UPDATED: February 6, 2012
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It is possible for a lawyer representing a disputant to serve as a mediator, but it is not recommended. A lawyer has an ethical obligation to represent his client vigorously. He or she cannot represent both disputants. If one of the lawyers tries to mediate, even with the consent of both parties, it's not likely that the other side will be entirely unbiased.
If the mediation does not result in settlement, there may be a lawsuit or the continuation of a lawsuit. In that case, the lawyer also acting as the mediator cannot simply forget everything that was said during the mediation, and thus, one side would be disadvantaged. Even where matters are amicably "settled," one side or the other often feels that there was a disadvantage because a lawyer for one party served as mediator.
State Laws on Mediation and Mediators
Some states have enacted laws preventing lawyers from changing their role to that of a mediator after agreeing to represent a particular party. In these states it is considered a violation of the attorney-client relationship to attempt the mediation. This restriction is further understood when you consider what will occur during the mediation compared to what a lawyer typically does.
During a mediation session a neutral mediator who knows nothing about the case thus far listens to both parties discuss their case. They take notes and may bring up certain strengths and weaknesses in each side’s arguments. Some mediators may even use an “evaluative” mediation stance where they briefly mention the parameters of where an ideal case and a worst case scenario would lie in court. The goal of these measures is to move the parties toward the best alternative to a negotiated agreement. The mediator never intimidates, lies to, or argues for either side.
Lawyers Roles in Mediation
A lawyer has the job and ethical obligation to represent a single party in a case and to do so to the utmost of their ability. They are thoroughly entrenched in the case with only client’s perspective in mind, and will know very little about the other side until discovery, which takes place later in a litigation proceeding. The lawyer is selling their services, so they are going to tell their client exactly what their case is worth and give a prediction of whether the party will receive a positive verdict. Lawyers will, on occasion, contact the other party if they are not already represented by council. They will use intimidation whenever possible and do everything they can to help their client prevail. So, when choosing a mediator, select someone other than your existing attorney to ensure a fair outcome from the case.