Q: I am an attorney and sometimes serve as a mediator for disputes which are not yet in litigation, or are pro se representations referred by Magistrate Justices. Often it seems as if the parties are unfairly using my legal services to map out an agreement. How do I avoid this?
A: That is a great question, and it brings up a number of issues. First let me say that the role of mediator does carry potential pitfalls for the lawyer/neutral. Often in matters that are in litigation, lawyers representing parties will look for an attorney/mediator with subject matter expertise. In the right circumstances, this is vital, in others, it can be optional, or even an impediment. But that is another article. Non-represented parties knowing you are a lawyer can be problematic because you do NOT represent either…and except in very rare and exceptional circumstances you cannot represent both. Again, that is another article.
The Pennsylvania Rules of Professional Conduct provide a useful guideline for addressing this issue, and I’m sure you can find bases for explaining the importance of observing the protections of the R.P.C. and how the points I have highlighted from the comment below can aid in your decision, and explanation to unrepresented parties.
Rule 2.4 Lawyer Serving as Third-Party Neutral
(b) A lawyer serving as a third-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 third-party neutral and a lawyer’s role as one who represents a client.
Comment:
[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. 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.
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