Drafting Agreements as an Attorney-mediator: Revisiting Washington State Bar Association Advisory Opinion 2223
| Publication year | 2021 |
INTRODUCTION
In 2012, the Washington State Bar Association's Rules of Professional Conduct Committee (the Committee) released Advisory Opinion 2223.(fn1) The Committee drafted Washington State Bar Association Advisory Opinion 2223 (WSBA Advisory Opinion 2223) in response to an inquiry about "[w]hether a lawyer who is acting as a neutral mediator pursuant to RPC 2.4 may prepare a Property Settlement Agreement, Order of Child Support, or Parenting Plan for unrepresented parties."(fn2) In WSBA Advisory Opinion 2223, the Committee opined that a lawyer acting as a neutral mediator preparing "complex and customized provisions using original language and choices" in drafting a document for unrepresented parties is (1) practicing law; (2) representing parties who may have interests directly in conflict; and (3) violating RPC 1.7,(fn3) which governs conflicts of interest with regard to current clients.(fn4) Mediators often draft documents such as those WSBA Advisory Opinion 2223 describes.(fn5) WSBA Advisory Opinion 2223 has therefore caused confusion and concern among Washington's mediation community.(fn6) Consequently, Washington attorney-mediators are left to wonder(fn7) whether they may no longer ethically perform a traditional step in the mediation process, as well as what WSBA Advisory Opinion 2223 means for clients seeking mediation's benefits.
This Comment discusses WSBA Advisory Opinion 2223, and so extensively examines the Washington Rules of Professional Conduct (RPC). Many mediators are not attorneys,(fn8) and Washington's Uniform Mediation Act does not require a mediator to be an attorney.(fn9) But because the RPC generally govern only lawyers,(fn10) and do not create concerns for nonlawyer third-party neutrals,(fn11) this Comment's scope will be limited to WSBA Advisory Opinion 2223's effects on attorney-mediators. This Comment will not examine WSBA Advisory Opinion 2223's implications for mediators who are not attorneys.(fn12)
This Comment explores WSBA Advisory Opinion 2223 in depth, focusing on both its reasoning and its effects on Washington attorney-mediators' practices. Part I gives a brief overview of mediation's history and development. Part II examines the fundamentals of the mediation process, including the principles generally applicable to mediation and mediation's basic steps. Part III takes a detailed look at WSBA Advisory Opinions in general, and WSBA Advisory Opinion 2223 in particular. Part IV analyzes WSBA Advisory Opinion 2223's flaws, focusing on two categories: (1) an omission of relevant comments to the RPC, and (2) an inconsistent reliance on extra-jurisdictional authority. Part V then argues that because of WSBA Advisory Opinion 2223's practical ramifications, revisiting WSBA Advisory Opinion 2223 is necessary. Finally, Part VI maintains that when reexamining WSBA Advisory Opinion 2223, the Committee should carefully consider all applicable RPC comments and seek guidance from other jurisdictions that have faced the same question. The Committee should be open to the possibility that these considerations may lead to a conclusion different from that reached in WSBA Advisory Opinion 2223.
I. A BRIEF HISTORY OF MEDIATION
Mediation is defined broadly as "a process where an impartial person assists others in reaching a resolution of a conflict or dispute."(fn13) Humans have long practiced mediation. For example, there are reported uses of mediation in China over 4000 years ago.(fn14) In the United States, mediation became increasingly prominent through the development of labor relations.(fn15) Additionally, during the twentieth century mediation was used as a cost-effective method for resolving cases outside ofadjudication.(fn16)
The modern mediation movement is generally considered to have begun with the Pound Conference in 1976.(fn17) The Pound Conference was a gathering of judges and scholars in the American Bar Association who wanted to examine why people were dissatisfied with the American justice system.(fn18) The conference contained a series of discussions and debates, including one that addressed the overcrowded and costly court system.(fn19) The Pound Conference gave rise to a pilot project creating Neighborhood Justice Centers designed to test mediation's role in resolving minor disputes.(fn20) These programs grew to become Dispute Resolution Centers, which now exist throughout the United States.(fn21) These community mediation centers in turn spurred the development of mediation's widespread use in the court system.(fn22) Today, mediation programs operate in both state and federal trial and appellate courts, as well as small claims courts.(fn23) Additionally, mediation is practiced in law schools through mediation courses and clinics.(fn24) The private mediation practice has grown to the point where it is now considered an independent profession.(fn25)
Mediation's prominence in the United States is particularly evident in its role in family law. Thousands of divorce-related disputes use mediation each year.(fn26) Since the late 1970s, the use of mediation in divorce settlement and child custody disputes has increased dramatically.(fn27) No-fault(fn28) and "do-it-yourself" divorces-along with the realization that an adversarial divorce process did not always best serve the parties' interests-contributed to family law mediation's growth.(fn29) Today, the vast majority of family law courts offer mediation services.(fn30) Domestic relations courts sometimes even compel mediation participation by parties who have custody or visitation disputes.(fn31) In the family law context, mediation provides parties with a way to achieve flexible resolutions while saving on the costs of litigation.(fn32) Mediation's role in family law illustrates why it is important that attorney-mediators have clear guidance about the ethical permissibility of family law mediation practices.
II. THE MEDIATION PROCESS
The root of the term "mediate" is the Latin word
Mediation involves a neutral third party, called the mediator, who helps the parties in reaching a mutually acceptable agreement.(fn37) Mediation is a consensual process in which the mediator has no power to rule or to compel the parties to agree to a particular resolution.(fn38) Some courts or contracts mandate mediation, but such mediations are mandatory only in the sense that the parties are required to attend the mediation and try the process.(fn39) The parties can discuss what they wish without using evidentiary or procedural rules.(fn40) Mediation is, by definition, voluntary and both parties must agree to those resolutions reached.(fn41)
Self-determination is a key element in the mediation process.(fn42) "Self-determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome."(fn43) This principle requires that the individuals are free to make their own decisions throughout the mediation.(fn44) How to proceed in the mediation, and whether to resolve a dispute or create an agreement, and on what terms, is at the discretion of each mediation party.(fn45) Self-determination sets mediation apart from other dispute resolution processes, such as adjudication or arbitration, in which a third party may make the decision for the parties.(fn46) Self-determination gives the parties the ability to be the final decision makers in their dispute, and is therefore an important aspect of mediation.(fn47)
Mediation does not have to follow a set format,(fn48) but most...
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