May Mediators Draft Settlement Agreements?

• Author: Calvin Lee
• Date: 01 July 2016
• Published date: 01 July 2016
• DOI: http://doi.org/10.1111/fcre.12232

MAY MEDIATORS DRAFT SETTLEMENT AGREEMENTS?

Calvin Lee

This article surveys the current law in various states as well as the Model Rules of Professional Conduct regarding whether a

mediator-lawyer may draft a settlement agreement at the conclusion of a mediation. It includes a look at the traditional bounda-

ries between a lawyer and a mediator and concludes with a recommendation on how California should approach whether a

mediator-lawyer should be allowed to draft a settlement agreement for parties at the conclusion of a mediation.

Key Points for the Family Court Community:

There is a fine line between the role of a mediator and the practice of law that one must balance as a mediator-lawyer.

The law regarding whether a mediator-lawyer may draft a settlement agreement at the conclusion of a mediation varies

by state, with mixed results.

California law is silent on this issue but mediator-lawyers should be given the option to draft settlement agreements

and related documents based on their professional discretion after certain precautions of disclosure and consent in the

spirit of greater emphasis on alternative dispute resolution.

Keywords: California; Draft; Mediation; Mediator-Lawyer; Model Rules of Professional Conduct; Settlement Agreement;

and Scrivener.

I. INTRODUCTION

May a mediator draft a settlement agreement at the conclusion of a mediation at the request of one

or more of the parties to the mediation? What seems a simple question has yielded convoluted

answers. This Note surveys the current state of law regarding the answer to this question. In doing

so, it contrasts the traditional definitions of the lawyer and of the practice of law with that of a media-

tor since many mediators are often lawyers as well. Additionally, the settlement agreement itself will

have to be defined in the context of the extant scope of the lawyer and mediator.

This Note will then look to what the American Bar Association’s (ABA) Model Rules of Profes-

sional Conduct (MR) as well as some state-specific laws say regarding whether a mediator can draft

a settlement agreement. In addition, it analyzes the policy behind the states’ legal standards.

Following a survey of the law, this Note will assess different states’ laws so that a recommenda-

tion can be made on how the law in California, or any state which has not yet taken a substantive

position on the question, should be interpreted or changed to fall more in line with the current policy

trends in mediation.

II. TRADITIONAL BOUNDARIES AND CURRENT OVERLAP

A. THE LAWYER AND THE PRACTICE OF LAW

It is important to define lawyers and their role in contrast to mediators to see any possible intersect

in the analysis of whether a mediator should be allowed to write up a settlement agreement that

reflects the terms the parties have agreed to at the conclusion of their mediation.

According to the ABA’s MR,

1

a lawyer is “a member of the legal profession ... a representative

of clients, an officer of the legal system and a public citizen having special responsibility for the qual-

ity of justice.”

2

The lawyer’s functions then include, inter alia, providing clients with an informed

FAMILY COURT REVIEW, Vol. 54 No. 3, July 2016 501–511

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C2016 Association of Family and Conciliation Courts