We now have the opportunity to address a reconsideration of AO2223. 

The WSBA Committee on Professional Ethics will be considering a request to review Advisory Opinion 2223 (http://mcle.mywsba.org/IO/print.aspx?ID=1669) at its next meeting on June 24th.  

We would like to write to the Committee to encourage reconsideration and allowing attorney-mediator's to draft agreements and final orders.  I will compose a short letter to post here for review and comment (unless someone else would like to do so).  The idea is to attach relevant documents that the Committee can review in its process of reconsideration.  Those documents include the WU Law Review article by Caitlin Park Shin (https://api.ning.com/files/oj4MhhoM4fRWZL2zhbTB7b5xhANHvEuQF-mtAXiK...), and the article by Professor Robert Collins (http://cardozojcr.com/wp-content/uploads/2016/04/CAC302_crop.pdf).

Can anyone suggest other materials that might be submitted to the WSBA Committee?

Please provide you input and suggestions. We must complete any presentation to be submitted to the Committee by the middle of next week.

Thanks.

Paul W. McVicker

paul@seattlelawandmediation.net  

Views: 168

Replies to This Discussion

Proposed letter follows.    Please provide any comments and suggestions by this Wednesday (6-15)  afternoon.  Thanks.   REVISED 6-15

Mark Fucile

WSBA Committee on Professional Ethics

Washington State Bar Association

1325 4th Ave, Suite 600

Seattle, WA 98101

             Re:       WSBA Advisory Opinion 2223

                        Lawyer-Mediator Preparing Legal Documents for Unrepresented Parties

Dear Mr. Fucile and members of the Committee:

 WSBA Advisory Opinion 2223 reaches the conclusion that attorney-mediators who draft legal documents such as Property Settlement Agreements, Orders of Child Support, or Parenting Plans for unrepresented parties are in violation of the Washington Rules of Professional Conduct.

We believe the opinion should be re-examined. Consideration should be made of all relevant comments to the RPC and to reasoning from other jurisdictions that have addressed these ethical considerations.  Drafting such documents has been common in mediation practice both in Washington and throughout the country. It is an important part of a comprehensive service that has been provided to mediation clients. Washington’s attorney-mediators are therefore concerned about how WSBA Advisory Opinion 2223 affects both their mediation process and their ability to provide such comprehensive services to mediation clients. Parties are not automatically and necessarily aligned against each other, adversarial, or antagonistic in mediation and upon reaching agreement share common goals and interests.

Prohibiting an attorney-mediator from helping the parties draft settlement agreements or agreed family law orders restricts their access to, and frustrates their experience with the justice system.  Parties often mediate to avoid the costs of litigation and hiring separate attorneys.  Presumably one attorney might draft the documents for a party while the other party remains unrepresented. The pending report of the WSBA Escalating Cost of Civil Litigation Task Force (http://www.wsba.org/Legal-Community/Committees-Boards-and-Other-Gro...) (see, e.g., p. 43 of the Final Report) cites mediation as an important means to resolve litigation early, and to increase the participants’ satisfaction with the process. The current opinion requires parties who have reached agreement, to hire counsel with limited familiarity to the situation to interpret and transform their agreement into final documents, even where there is little to divide or few disagreements. This stance forces parties to hire professionals they may not want nor need,

We recommend that the committee consider the analysis of others that have examined the ethical issues raised in drafting such documents for unrepresented parties and take a broad perspective on the subject. Guidance on how to adequately inform clients of the role of the mediator would be more useful to the public than the current stance.  Mediators, particularly in family law, should be qualified and adhere to standards.  The ABA Committee on Mediator Ethical Guidance has issued numerous opinions on mediator ethics and addressed mediators representing unrepresented parties in SODR-2010-1, Issued June 24, 2010 an ABA article on the opinion may be found on the CPR Website. The article appearing in the UW Law Review by Caitlin Park Shin, Washington Law Review, Vol.89, 1035,  is an excellent analysis of the subject and the omissions made in the earlier analysis by the Committee. The recent article by Professor Robert Collins at the Cardoza School of Law, Cardozo Journal of Conflict Resolution, Vol. 17, 691, provides a summary of other jurisdictions that have faced the same question.

Washington is among a minority of jurisdictions that prohibit attorney-mediators from drafting agreements and orders. Such drafting should be accepted as an essential and necessary part of the divorce mediation process by qualified mediators for parties who have common interests and goals.

 

I agree with your point that the parties’ wishes are often aligned by the conclusion of a family law mediation.

I would change the “unqualified conclusion” language in the first sentence, despite its use near the start of Ms. Shin’s law review article. While I understand that “unqualified” in this context means unconditional, it sounds like an attack/criticism of the group we are addressing.

While I understand the time required (and the limited time available) to crystallize the issues raised, the draft letter seems to cite the two articles with a “what they said” endorsement. Personally, while it provided a decent overview of different states’ approaches, I found the tone of Professor Collins’ article to be acerbic and almost condescending. I’m not sure I’d call it an “excellent summary.”

Prohibiting an attorney-mediator from helping the parties draft agreed family law orders restricts their access to, and frustrates their experience with, the justice system. Parties often mediate to avoid the cost of hiring separate attorneys. Opinion 2223 currently requires parties who have reached agreement to pay at least one attorney to incorporate their agreements into the mandatory court orders, starting anew when the mediator is already familiar with the situation. That stance with agreed litigants needlessly escalates their costs, when there is current concern over the “Escalating Cost of Civil Litigation”. The pending report of the WSBA ECCL Task Force (http://www.wsba.org/Legal-Community/Committees-Boards-and-Other-Gro...) (see, e.g., p. 43 of the Final Report) cites mediation as an important means to resolve litigation early, and to increase the participants’ satisfaction with the process.

In the family law context, I believe that the new plain language orders (e.g., forms FL Divorce 231 and 241) provide less latitude for creative writing (i.e., advocacy) in general. Especially when there is little to divide, or few disagreements, citing an abstract “conflict of interest” is unlikely to change most parties’ perception that it’s a system rigged to line the pockets of lawyers.

Thanks Mark.  I made a couple of edits taking out "unqualified" and referring to the Collins article as a good summary.  I like what you state about access and the ECCL Report:

Prohibiting an attorney-mediator from helping the parties draft agreed family law orders restricts their access to, and frustrates their experience with, the justice system. Parties often mediate to avoid the cost of hiring separate attorneys. Opinion 2223 currently requires parties who have reached agreement to pay at least one attorney to incorporate their agreements into the mandatory court orders, starting anew when the mediator is already familiar with the situation. That stance with agreed litigants needlessly escalates their costs, when there is current concern over the “Escalating Cost of Civil Litigation”. The pending report of the WSBA ECCL Task Force (http://www.wsba.org/Legal-Community/Committees-Boards-and-Other-Gro...) (see, e.g., p. 43 of the Final Report) cites mediation as an important means to resolve litigation early, and to increase the participants’ satisfaction with the process.

Might we add that to the letter?  What do you think?  Might there be other articles suggested?

You are welcome to use any of the language in my post, with the possible exception of the parts criticizing the Collins article's tone.

Unfortunately, I am not familiar with other articles/resources on the topic. However,since the state Supreme Court has the ultimate authority over the ethics rules, I'd recommend forwarding a copy of our comments to all the Justices, especially given its activism in recent years over access to justice (LLLTs, plain language forms.)

Paul,

Thanks for all of your work on this!  This is a copy of the letter that I sent to Lori Buchsbaum, chair of the KCBA ADR Section.There is a relevant link at the end for an article about the ABA's position....might be relevant! 

I am not sure how Advisory Opinion 2223 has affected my mediation practice, because thankfully, I was busy before the opinion came out and I am busy now.  That being said, the more important issue is how this opinion has affected the people that our profession serves.   The effect on our clients is negative; it takes away their self-determination, may add additional conflict, and definitely adds costs that clients mot of the time perceive as unnecessary, not adding value and in fact that they want to avoid.  The requirement burdens clients, costs them money and therefore puts our profession in an unfavorable light.   

 

A bit of background information on me:  a) full-time divorce mediator (no law practiced) and nearly 100% of practice is devoted to early stage mediation; b) practicing early stage divorce mediation since 1987; c) practiced early stage divorce mediation in Minnesota, Illinois and for the past eleven years in Washington; and founding and board member of the Academy of Professional Family Mediators.

 

For the nearly thirty years that I have practiced as a professional family mediator I have drafted the agreements.  Why would we want it done any other way?  As the mediator I am the person that hears what both clients agree to; the three of us then review the drafted agreement to make sure it clearly states the terms of their agreement.  For me to draft a memorandum and then have an attorney who has not been present in the mediation and who represents one client draft the final agreements leads to misunderstandings and confusion that lead to additional emotional and financial costs to the clients; inevitably the attorneys put things in the “agreement” that were never agreed upon and the clients start spinning.  Let’s face it, both clients do not trust or have a relationship with the attorneys; by definition the attorneys represent their own client, not both.   This is a recipe for disaster.

 

Even before this opinion it has always been my practice to strongly encourage clients to have attorneys review the agreements; most clients did have attorneys review the agreements before the opinion and as far as I know all do now.  But the problem is that the opinion forces people to have legal services that they probably do not need and often times do not want.  I hear a lot of grumbling from the clients about it. 

 

My practice has always been to inform clients that I am not their attorney and that my practice is limited to mediation; they are told this in writing and in review  no less than three times: this is in my rules, my contract and in the agreement itself.  All are reviewed with the clients thoroughly. 

 

What could be useful, rather than Advisory Opinion 2223, is guidance on how to adequately inform clients of the role of the mediator.  Advisory Opinion 2223 seems to have been developed by attorneys who are familiar with settlement conference “mediations”, (which, in my opinion, are not at all appropriate for divorcing couples) but are not familiar with early stage, voluntary mediation.  This opinion does not address the needs of clients voluntarily entering mediation in order to help them through a family transition using a more positive, less costly approach.

 

The following is a link to an article about the ABA’s Standing Committee on Mediator Ethical Guidance, new opinion that addresses the level of care mediators must take when unrepresented parties request the mediator to draft a settlement agreement in divorce mediation. 
http://www.cpradr.org/About/NewsandArticles/tabid/265/ID/677/Ethics... .

 

Bottom line…as a profession we need to realize that we are here to serve the public.  They do not want or care about this rule.  The public should be entitled to self-determination and our duty should be to adequately inform.  We should not be requiring a rule that requires people to have legal services they do not want, costs people a lot of money and appears to be self-serving; we need a rule that tells us how to adequately inform the public. 

 

Divorce is not really a legal problem…it is a family problem.   

I revised the letter (see above) today.  Comments?  Suggestions? Criticism (I can take it!)?

Thank you, Paul. I found a few typos, a link that didn't work, and have a few suggested changes. I'll email you a redlined version separately.

Mark

Dear Mr. Fucile and members of the Committee:

WSBA Advisory Opinion 2223 reaches the conclusion that attorney-mediators who draft legal documents such as Property Settlement Agreements, Orders of Child Support, or Parenting Plans for unrepresented parties are in violation of the Washington Rules of Professional Conduct.

We believe the opinion should be re-examined. Further consideration should be given to the comments to the RPC sections involved and to reasoning from other jurisdictions that have addressed these ethical considerations.  Drafting such documents has been common in mediation practice both in Washington and throughout the country. It is an important part of a comprehensive service that has been provided to mediation clients. Washington’s attorney-mediators are therefore concerned about how WSBA Advisory Opinion 2223 affects both their mediation process and their ability to provide such comprehensive services to mediation clients. Parties are not automatically and necessarily aligned against each other, adversarial, or antagonistic in mediation, and upon reaching agreement share common goals and interests.

Prohibiting an attorney-mediator from helping the parties draft settlement agreements or agreed family law orders restricts their access to, and frustrates their experience with, the justice system.  Parties often mediate to avoid the costs of litigation and hiring separate attorneys.  Presumably one attorney might draft the agreed documents for one party while the other party remains unrepresented. The pending report of the WSBA Escalating Cost of Civil Litigation Task Force (http://www.wsba.org/Legal-Community/Committees-Boards-and-Other-Gro...) (see, e.g., p. 43 of the Final Report) cites mediation as an important means to resolve litigation early, and to increase the participants’ satisfaction with the process. The current opinion requires parties who have reached agreement to hire counsel with limited familiarity to the situation to interpret and transform their agreement into final documents. This stance forces parties to hire professionals they may not want nor need.

We recommend that the committee consider the analysis of others who have examined the ethical issues raised.

  1. Guidance on how to adequately inform clients of the role of the mediator would be more useful to the public than the current stance.  Mediators, particularly in family law, should be qualified and adhere to standards.  The ABA Committee on Mediator Ethical Guidance [THE APPARENT LINK DIDN’T WORK] has issued numerous opinions on mediator ethics, and addressed mediators drafting agreed documents for unrepresented parties in SODR-2010-1, Issued June 24, 2010. An ABA article on the opinion may be found on the CPR Website [WHAT IS THE CPR AND WHERE CAN THE ARTICLE BE FOUND?]. 
  2. The article appearing in the UW Law Review by Caitlin Park Shin, Washington Law Review, Vol. 89, 1035,  is an excellent analysis of the subject.
  3. The recent article by Professor Robert Collins at the Cardoza School of Law, Cardozo Journal of Conflict Resolution, Vol. 17, 691, provides a summary of other jurisdictions that have faced the same question.

Washington is among a minority of jurisdictions that prohibit attorney-mediators from drafting agreements and orders. Such drafting should be accepted as an essential and necessary part of the divorce mediation process by qualified mediators for parties who have common interests and goals.

 

lastest Final Draft:

June 17, 2016

Mark Fucile

WSBA Committee on Professional Ethics

Washington State Bar Association

1325 4th Ave, Suite 600

Seattle, WA 98101

Re: WSBA Advisory Opinion 2223

Lawyer-Mediator Preparing Legal Documents for Unrepresented Parties

Dear Mr. Fucile and members of the Committee:

WSBA Advisory Opinion 2223 reaches the conclusion that attorney-mediators who draft legal documents such as Property Settlement Agreements, Orders of Child Support, or Parenting Plans for unrepresented parties are in violation of the Washington Rules of Professional Conduct.

We believe the opinion should be re-examined. Further consideration should be given to the comments to the RPC sections involved and to reasoning from other jurisdictions that have addressed these ethical considerations. Drafting such documents has been common in mediation practice both in Washington and throughout the country. It is an important part of a comprehensive service that has been provided to mediation clients. Washington’s attorney-mediators are therefore concerned about how WSBA Advisory Opinion 2223 affects both their mediation process and their ability to provide such comprehensive services to mediation clients. Parties are not automatically and necessarily aligned against each other, adversarial, or antagonistic in mediation, and upon reaching agreement share common goals and interests.

Prohibiting an attorney-mediator from helping the parties draft settlement agreements or agreed family law orders restricts their access to, and frustrates their experience with, the justice system. Parties often mediate to avoid the costs of litigation and hiring separate attorneys. Presumably one attorney might draft the agreed documents for one party while the other party remains unrepresented. The pending report of the WSBA Escalating Cost of Civil Litigation Task Force (http://www.wsba.org/Legal-Community/Committees-Boards-and-Other-Gro...) (see, e.g., p. 43 of the Final Report) cites mediation as an important means to resolve litigation early, and to increase the participants’ satisfaction with the process. The current opinion requires parties who have reached agreement to hire counsel with limited familiarity to the situation to interpret and transform their agreement into final documents. This stance forces parties to hire professionals they may not want nor need.

We recommend that the Committee consider the analysis of others who have examined the ethical issues raised. Guidance on how to adequately inform clients of the role of the mediator would be more useful to the public than the current stance. Mediators, particularly in family law, should be qualified and adhere to standards. The Committee might consider the following:

 The ABA’s Standing Committee on Mediator Ethical Guidance,

(http://apps.americanbar.org/dch/committee.cfm?com=DR018600), a part of the ABA Section of Dispute Resolution, has issued numerous opinions on mediator ethics, and addressed mediators drafting agreed documents for unrepresented parties in SODR-2010-1, Issued June 24, 2010.

(http://apps.americanbar.org/webupload/commupload/DR018600/relatedre...)

 An article on the opinion may be found on the Website of The International Institute for Conflict Prevention & Resolution (CPR)

(http://www.cpradr.org/About/NewsandArticles/tabid/265/ID/677/Ethics...).

 The article appearing in the UW Law Review by Caitlin Park Shin, Washington Law Review, Vol. 89, 1035,

( https://api.ning.com/files/oj4MhhoM4fRWZL2zhbTB7b5xhANHvEuQF-mtAXiK...*J1WViJOcg*6ld86ECvb4MEpT9dxPbLMupU/WaLawRev2223.pdf) analyzes the subject.

_

 The recent article by Professor Robert Collins at the Cardoza School of Law, Cardozo Journal of Conflict Resolution, Vol. 17, 691,

(http://cardozojcr.com/wp-content/uploads/2016/04/CAC302_crop.pdf)

provides a summary of other jurisdictions that have faced the same question.

Washington is among a minority of jurisdictions that prohibit attorney-mediators from drafting agreements and orders. Such drafting should be accepted as an essential and necessary part of the divorce mediation process by qualified mediators for parties who have common interests and goals.

We appreciate the Committee taking the time to examine the issue.

Paul,

I think your letter is excellent.  Thank you for all of your work!

Paul, thanks for all your hard work on this.

Has anyone collected letters or signatures from judges and commissioners who would support this request for reconsideration? I volunteer for the Thurston County DRC, where mediation is mandatory in almost all family law cases. We have received express requests from the court to make sure the forms are filled out! Not all DRC mediators are attorneys, but there are several of us. It makes no sense to exclude the attorney-mediators (whether DRC volunteers or private) from the ability to carry out the court's wish, and send people back into court with their forms filled out. If we don't fill it out at the end of a mediation, or help them do so, it's unlikely most parties will have someone else do it, and it makes more work for the court.

If we can be neutral during the mediation, we can be neutral in filling out the form. I think there are judges and commissioners who would back us up on this, and perhaps finding a way to include those voices would help persuade the CPE.

Dispute Resolution Centers also have an interest in this issue. Currently, at the Whatcom Dispute Resolution Center, non-attorney mediators draft agreements while attorney-mediators, at least those of us cognizant of 2223, when volunteering there, are unwilling to assist in the drafting. I know because I'm one of those volunteer mediators. If nothing else, it might make sense for there to be an exception for DRCs since this would serve the interest of low-income citizens who are likely to avail themselves of mediation in that context.

Outside the context of pro-bono and lo-bono services, I don't mind AO2223. When I formerly practiced in Arizona, there was no guidance from the Bar. I acquiesced in drafting documents in plain vanilla divorce cases because I had to in order to be competitive with other mediators, but it always made me nervous. It was a relief to come here and discover I could no longer perform this service (and no one else could either). I see plenty of potential for problems if attorney-mediators draft documents. If one party later claims he/she was coerced into signing, that the information wasn't adequately explained, that they didn't understand what they were reading -- the potential for complaints and suits is enormous.

It's entirely possible that an unrepresented party might sign something without having fully read or understood it, or without considering all relevant issues before entering the agreement. Certainly there are decent rationals for changing the opinion, but I also think there are compelling reasons to keep it as is.

RSS

Welcome

Welcome to our community of ADR professionals: mediators, arbitrators, and lawyers representing and advising clients.  We are active in the growth and development of ADR in Washington as well as the education of members of the bar and the public.

Latest Activity

Kiona Gallup is now a member of WSBA Alternative Dispute Resolution
10 hours ago
2 events by WSBA ADR were featured
10 hours ago
WSBA ADR posted events
10 hours ago
William J. O'Brien is now a member of WSBA Alternative Dispute Resolution
Apr 17

© 2017   Created by WSBA ADR.   Powered by

Badges  |  Report an Issue  |  Terms of Service