Best Behavior: Effective Strategies for Avoiding Ethics Mistakes in Mediation

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This program will address the ethical obligations of Lawyer Advocates representing clients in mediation and lawyer third-party neutrals serving as mediator. It will cover the Advocate’s ethical obligations to prepare and represent clients effectively in mediation and to anticipate settlement issues and memorialize a settlement so it sticks after the mediation adjourns to avoid client regrets or parties attempting to renegotiate the deal. It will also address the Lawyer Mediator’s obligations to parties and counsel regarding communications, neutrality, and disclosures. With respect to obligations of both Advocates and Mediators, the course will cover obligations as to protect confidentiality and assure participants understand and honor those obligations including responsibilities with respect to in person versus remote mediation.

The program will include coverage of the ABA Model Rules of Professional Conduct and ABA Standing Committee on Ethics and Professional Responsibility:

• Preamble
• Rule 1.1 Competence
• Rule 1.2 Scope of Representation
• Rule 1.3 Diligence, Rule 1.4 Communication, Rule 1.6 Confidentiality
• Rule 2.4 Lawyer Serving as Third-Party Neutral
• Rule 3.3 Candor to the Tribunal
• Rule 4.1 Truthfulness in Statements to Others
• Rule 7.1 Communications Concerning a Lawyer's Services
• Rule 8.4 Misconduct

• ABA Formal Opinion 06-439 -Lawyer’s Obligation of Truthfulness When Representing a Client in Negotiation: Application to Caucused Mediation
• ABA Formal Opinion 518 –Lawyer’s Duties to Avoid Misleading Communications Acting as a Third-party Neutral Mediator

In addition, the program will refer to other sources such as state law, court rules, forum rules such as the American Arbitration Association and CPR International Institute for Conflict Prevention and Resolution.

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