By Daniel J. Siegel
Lawyers often take on many diverse roles, and one of the most unique roles is that of a third-party neutral mediator. Unlike traditional legal representation, mediation requires lawyers to step away from their advocacy role and act as impartial facilitators, helping parties resolve disputes collaboratively. This shift in responsibility brings with it a unique set of ethical obligations, which are outlined in the American Bar Association’s Formal Opinion 518, “A Lawyer’s Duties to Avoid Misleading Communications When Acting as a Third-Party Neutral Mediator,” issued on October 15, 2025 by the Standing Committee on Ethics and Professional Responsibility. This column summarizes the Opinion.
ABA Model Rule of Professional Conduct 2.5 defines a third-party neutral as a lawyer who assists two or more parties, none of whom are the lawyer’s clients, in resolving a dispute. This role differs from representing a client because the lawyer-mediator does not advocate for any party’s interests. Instead, they facilitate discussions and help parties reach a resolution. Under Rule 2.4(b), lawyer-mediators must inform unrepresented parties that they do not represent them. If the mediator knows or reasonably should know that a party does not understand the mediator’s role, they must explain the difference between being a neutral mediator and a lawyer representing a client. This is particularly important for parties unfamiliar with mediation, who may mistakenly believe the mediator is acting in their best interests.
A lawyer-mediator must maintain neutrality and avoid any statements or actions that could imply they are advocating for a party’s best interests. For example, they should not suggest that a proposed settlement is in a party’s best interest or provide legal advice. While it is acceptable to share legal information or discuss how a tribunal might rule on a matter, mediators must avoid crossing the line into advocacy or legal counsel. For example, a mediator may offer an opinion on how a tribunal is likely to rule. Still, they should not use this Opinion to pressure a party into accepting a settlement.
Model Rule 8.4(c) prohibits lawyers from engaging in dishonesty, fraud, deceit, or misrepresentation—standards that apply to lawyer-mediators as well. Unlike lawyers representing clients in negotiations, who may engage in “puffery” or exaggeration as part of the bargaining process, lawyer-mediators are held to a higher standard of truthfulness. Parties in mediation trust mediators to be neutral and honest, and any misleading statements can have serious consequences. For example, a lawyer-mediator should not falsely claim that a particular offer is the best one the opposing party will make or exaggerate the strengths or weaknesses of a party’s case. Such statements could lead parties to make decisions based on false information, undermining the fairness and effectiveness of the mediation process.
While lawyer-mediators may convey statements made by the parties or their counsel, they must be careful not to give credence to statements they know to be false. For instance, if a party claims that they cannot offer more than a certain amount in a settlement, the mediator can relay this information but must make it clear that the statement originates from the party and does not represent the mediator’s Opinion. This distinction is crucial to maintaining the mediator’s credibility and neutrality.
The Opinion offers key takeaways for mediators.
1. Clarify Their Role: Mediators must always inform unrepresented parties that they do not represent them and explain the difference between their role as a mediator and that of a lawyer representing a client.
2. Avoid Misleading Statements: Mediators must not imply that they are advocating for a party’s best interests or providing legal advice.
3. Maintain Neutrality: Mediators must be transparent and avoid exaggeration, dishonesty, or misrepresentation in all communications.
4. Be Prudent: For parties unfamiliar with mediation, mediators must take extra care to ensure they understand their role and the process.
Formal Opinion 518 also highlights the importance of considering the specific circumstances of each mediation when fulfilling ethical duties. Factors such as the parties’ familiarity with mediation, the subject matter of the dispute, and the features of the chosen dispute-resolution process can all influence the extent of disclosure required.
For parties who are not sophisticated consumers of mediation services, the lawyer-mediator should take extra steps to ensure they understand the mediator’s role. This may include providing detailed explanations, answering questions, and addressing any misconceptions about the mediation process. By doing so, the mediator can help build trust and create an environment conducive to productive discussions.
Additionally, lawyer-mediators must be mindful of other rules and policies that may apply to the mediation process, such as state statutes, court rules, or guidelines established by mediation organizations. For example, the Model Standards of Conduct for Mediators emphasize the importance of avoiding conflicts of interest and maintaining impartiality throughout the mediation process.
In conclusion, under Rule 2.4, lawyer-mediators must explain their role to unrepresented mediation parties or those who do not appear to understand the mediator’s function and, where necessary, inform all parties of the difference between the role of a mediator and that of a lawyer representing a party. Based on the guidance in Comment [3], unless the parties are sophisticated consumers of mediation services, it is prudent for the lawyer-mediator not only to inform all parties that the lawyer-mediator does not represent them but also to afford them an opportunity to discuss what this means.
In addition to other rules governing the duties of a mediator, the Model Rules require the lawyer-mediator to avoid communications that are dishonest, fraudulent, deceitful, or misrepresentative in violation of Rule 8.4(c).
Ultimately, the role of a lawyer-mediator is to facilitate resolution while adhering to the highest ethical standards. By following the guidance in ABA Formal Opinion 518, lawyer-mediators can help parties navigate disputes with clarity, fairness, and trust.
Daniel J. Siegel, principal of the Law Offices of Daniel J. Siegel and Past-Chair of the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility, regularly represents injured workers in claims before all Pennsylvania courts. He also provides ethical guidance and Disciplinary Board representation for attorneys and law firms; he is the editor of Fee Agreements in Pennsylvania (6th Edition) and author of Leaving a Law Practice: Practical and Ethical Issues for Lawyers and Law Firms (Second Edition), published by the Pennsylvania Bar Institute. He can be reached at dan@danieljsiegel.com.
