RPC 1.12(b); 2.2
Lawyer acting as mediator and representing a party; mediator preparing documents
[The inquiry concerned] (1) whether a lawyer, as a mediator, may prepare final documents and sign a settlement agreement in which he/she acts as lawyer for one of the parties, and includes a clause in the agreement indicating he/she represents one of the parties in the settlement, and has the opposing party sign a consent and waiver? and, (2) whether it is ethical as a mediator to prepare initial dissolution pleadings where the lawyer has acted as a mediator and the parties have had independent counsel?
The Committee has answered as follows:
(1) No. RPC 1.12(b) and case law specifically prohibit a lawyer from acting as an adjudicative officer or arbitrator, while representing a party in the proceeding in which he/she is participating personally and substantially. The rule should extend to a mediator as 1.12(b) refers to mediator in the remaining portion of the rule, and mediators have been held as adjudicating officers, by the Washington Courts.
There is no prohibition limiting the mediator from the preparation of the mediation agreement reached by the parties or the final documents. In fact, as a practical matter his/her preparation of the mediation agreement and final documents may be advisable, with the mediation agreement reflecting the parties' intent to have the same incorporated by reference into the final decree. Where neither party is represented independently, the lawyer is obligated to advise that he can only represent one party or can mediate with each party's consent but cannot mediate and represent one party in the same proceeding.
(2). Yes. When the parties are independently represented and the sole function of the mediator is to mediate, the mediator may act as scrivener, preparing the mediation document/agreement reached by all parties. There is no prohibition of the mediator preparing the mediation agreement or final pleading, where the parties are represented. As a practical point, mediators should mediate and where necessary prepare a mediation agreement. Attorneys should prepare pleadings. RPC 2.2.