|CAN NON-ATTORNEYS DRAFT MEDIATED SETTLEMENT AGREEMENTS?
As mediators, our goal is to help people resolve their conflicts, but once the disputing parties determine their solution, what is the best next step? The instructors of our basic mediation classes taught, and our ethical rules instruct, that mediators should encourage the parties to reduce their agreements to writing, and that writing is often called a mediated settlement agreement (MSA). But who should write the MSA? The parties’ attorneys? The parties alone if they have no attorneys? The mediator? If a mediator writes the MSA and does not have a license to practice law, does the mediator engage in the unauthorized practice of law? If the mediator who writes the MSA is an attorney, does the mediator behave unethically by representing all parties participating in the mediation?
For years, many people in the legal and mediation communities have argued that although mediation itself is not the practice of law, a mediator who drafts an MSA is engaged in the practice of law. In September 2008, the Professional Ethics Committee of the State Bar of Texas (PEC) issued an opinion that clouded the waters even more. Some people interpreted the opinion as saying the preparation of the MSA by a mediator who is also an attorney is unethical representation of clients with conflicting interests. Others argued the PEC’s opinion did not even address the issue of drafting MSAs.
After nearly eight years of controversy over this question, our presenter decided to ask the PEC for a clarification of its 2008 opinion. In 2018, the PEC provided clarification of its 2008 opinion as it affects mediators who are attorneys; the clarification also hinted at what the answer might be for mediators from other professional backgrounds. Please join us on Friday, February 15 to learn about the answer he received, to discuss an “important unanswered question,” and to receive one hour of ethics.
Wright - ethics opinion 675.pdf
Walter A. Wright, J.D., LL.M. is an associate professor in the Legal Studies Program of the Department of Political Science at Texas State University, where he teaches courses in law and mediation. He is also an adjunct professor of mediation for the University of Texas School of Law and the Universidad de Alcalá (Spain). He is a published author of over 100 articles and book chapters in the United States and several Latin American countries. An attorney and mediator, he received B.A. and J.D. degrees from the University of Houston and an LL.M. in International Legal Studies from New York University. He is former president of the Texas Association of Mediators and the Association of Attorney-Mediators. He has also served on the council of the ADR Section of the State Bar of Texas and the board of directors of the Central Texas Dispute Resolution Center. Since 1996, he has taught negotiation and mediation courses and conducted facilitated dialogues throughout Latin America.
Read more about Walter Wright.
We meet at the DRC, 5407 N. IH-35, Suite 410, on Friday, February 15, 2019, from 11:30am - 1:00pm (We start at 11:30 for lunch and networking, presentation starts at 12:00).
The meeting (including lunch) is free of charge for AAM members, and $10 for non-AAM members.
One (1) hour of ethics is available for those who attend.