Oct. 21, 2015 – Do you serve as a mediator as part of your family law practice? Do you draft marital settlement agreements, parenting plans or findings of fact, conclusions of law and judgments when the parties reach agreement? It is likely that some of you do, because these are the services that your mediation clients desire and require to resolve their dispute.
Michael J. Dwyer (Georgetown 1975) is a circuit court judge from Milwaukee. He has been on the bench since 1997 and currently is in his second rotation in the Children’s Division. Prior to taking the bench, he was a general practitioner in Milwaukee County for more than 20 years.
Unfortunately, with the possible exception of limiting your drafting to the use of the statutorily mandated forms, such drafting is either a violation of the Rules of Professional Responsibility or a very ill-advised form of joint representation. A subcommittee of the Planning and Policy Advisory Committee of the Supreme Court (PPAC) believes that the rules should be changed to allow such drafting. The subcommittee is in the process of developing a rule proposal to make the necessary changes.
The problems with lawyer-mediator drafting are surprisingly complex. They boil down to two problems. The first is that the selection and completion of legal documents constitutes the practice of law per SCR 23.02(2)(i). SCR 20:1.12 prohibits a lawyer-mediator from representing any party to a mediation he or she has conducted. The second is that SCR 20:1.1 and 20:1.3 (the lawyer’s duties of competence and diligence) reference a lawyer representing a client and thus may not apply when a lawyer acts as mediator. In order to have a client, the lawyer-mediator would have to either represent one of the parties or both of them after a successful mediation. The conflict of interest problems, to say nothing of the difficulty of explaining the shift of role from neutral mediator to legal representative, are apparent.
The draft rule addresses these problems by providing that the drafting lawyer drafts while remaining in the neutral role of mediator, thus representing neither of the parties. The rule also specifically imposes the ethical duties of competence and diligence upon the lawyer.
The rule is limited to lawyers serving as mediators in cases arising under Chapter 767, Stats. because the family law arena is the area where the problem presents itself most frequently and where the absence of legal input into dispute resolution is most acute. It allows a lawyer-mediator to select and complete the documents needed to confirm, memorialize and implement agreements reached in mediation. The basic conditions for doing so are:
The lawyer must maintain her or his neutrality throughout the process.
- The parties must give informed consent, confirmed in writing, which consent shall require the lawyer to explain the following:
a. The limits of the lawyer’s role and any information relevant to actual or potential conflicts of interest of the lawyer;
b. That the lawyer-mediator does not represent either party to the mediation;
c. That the lawyer-mediator cannot give legal advice or advocate on behalf of either party; and
d. The desirability of seeking independent legal advice before the execution of any documents.
The draft rule specifically provides that the lawyer-mediator who drafts documents as set forth does not establish an attorney-client relationship with either of the parties to the mediation, but notwithstanding the lack of an attorney-client relationship, requires that the lawyer exercise the same diligence and competence that a lawyer owes to a client. The rule also permits the drafting lawyer-mediator to file documents with the court without entering an appearance in the case, and prohibits the lawyer from appearing in court on behalf of the parties.
The proposed rule is in draft form. The subcommittee is seeking feedback from the legal community about its terms. If you have questions, comments or concerns, you are invited to share them with Milwaukee County Circuit Court Judge Michael Dwyer, who chairs the subcommittee, at .