Attorney-Mediators Drafting Property Settlement Agreements
An Opinion drafted for NJAPM's Newsletter - February 2007
By Adam J. Berner, Esq.
Assuming that certain expectations are met, not only is it ethical for attorney-mediators to draft Property Settlement Agreements, but I would posit that often attorney-mediators are in the best position to do such drafting.
First it saves an extra step without necessarily providing added benefit, thus reducing the cost and time to parties during this difficult (and costly) period in their lives.
Second, the mediator, we shall assume, has earned the trust of the parties and is often the most involved professional regarding all the details of the comprehensive settlement. With his or her objective understanding of the parties' agreement, the mediator is best positioned to document those exact terms.
Third, who else should do it?
If it is an attorney for one side, then we run the risk of that attorney generating a biased document in favor of his or her client. While attorneys reading this might be aghast of such a possibility, I have certainly seen first hand and on more than one occasion attorneys draft unilateral agreements conflicting with terms of the agreement and certainly its spirit. Can we guarantee who will be the drafting attorney? And in all fairness to that attorney, is it not his or her professional responsibility to draft in the zealous favor of his or her client? Even if not zealous, subtle favor can be as equally if not more dangerous.
The other option would be a neutral attorney drafter ("scribner"), but then we have added another professional with the same dilema as the first (mediator) professional - how can a neutral attorney draft a document for two "conflicting" sides?
To be clear, I am not suggesting that the attorney-mediator should always and automatically do such drafting. Some guidelines should be in place, which should include the following conditions:
1) Competency to draft a comprehensive legal agreement which must be faithful to both sides' objectives.
2) The parties are in agreement with and firmly committed to said terms and that there remain no legal differences between them.
3) An explicit waiver confirming the parties understanding of the role of the mediator / drafter and the inherent limitations of that role and the concerns of conflict of interest.
4) Communication to the parties that any "boiler plate" language (and I would actually argue that there is no such thing) that was not explicitly agreed to by the parties is included in the document for informational purposes only and should not be accepted as definitive, nor as legal advice, but should be considered as optional and examined closely by the parties and their counsel. Ideally though, all substantive terms should be discussed in the mediation room, even those that others might consider as â€œboiler plate.â€�
5) The parties should consult with attorneys and such consultation, or the opportunity for such consultation, should be explicitly documented in the Agreement, including the names of the attorneys. In cases with children and/or significant financial issues, then the role of separate attorneys should be urged, and sometimes required.
To my understanding, there are two conceptual frameworks to understand the appropriateness of attorneys-mediators drafting agreements.
The first is based on the view that drafting is not the practice of law. Just as a clients can draft their own document, pro se, for their own conflict, and that is not the practice of law, so can a mediator who is involved with mediated agreement, in every aspect and detail, can be best suited to draft the terms of what they were so involved in. Similarly, in many states real estate brokers can provide real estate documents for parties in a real estate transaction without practicing law. This is also consistent with my early experience mediating community disputes in New York Community Mediation Centers, postal service or EEOC disputes, where parties would sign the agreements that the mediator drafted. No one, as far as I am aware, ever suggested that drafting those contracts at the end of the mediation session was the practice of law. This approach, I believe is implicit in the ABA's DR Sectionâ€™s UPL Resolution.
The second view (and one which I believe is on more solid ground) is that such drafting is the practice of law, but that there is no inherent conflict of interest that would otherwise prevent the attorney-mediator in serving such a role. If there was, then we couldn't have neutral attorneys who were not the mediators do the drafting either. Providing a legal service does not inherently mean that there is legal representation. We know this not only from the â€œunbundlingâ€� concept, but also from other kinds of legal services such as helping couples adopt a child or buy a house. In Justice Brandeis's words, there is such a thing as "the attorney for the situation." This is certainly the case when both sides are represented by separate counsel and a third attorney is drafting the agreement. I believe that an attorney can draft a legal divorce agreement from a neutral perspective without inherently being in a conflict of interest and without representing either side. And I believe that a qualified mediator, who is trained and experienced in serving as a neutral and who is also involved with all the details of the parties' agreement is often the best person to be that drafter.
I understand that NJAPM ethical guidelines (which I think are being revised anyway) may have been interpreted to be inconsistent with this position due to a conservative and precautious concern to differentiate boundaries between the professional roles of attorney and mediator. While I am not privy to the development of that position, to the extent that this interpretation is true, I would argue either that such language should be interpreted differently so that it does not prevent attorney mediators from drafting or that such language be reconsidered in light of current standards of practice around the country and in our own human experience of how we can best serve our clients as neutrals.
 This essay represents a complete version of an opinion statement intended for publication in the NJAPM Newsletter, but due to spacing constraints, was not able to be printed in its entirety.