In its opinion issued today, the Florida Supreme Court in In Re: Amendments to the Rules Regulating the Florida Bar, Case Number SC04-2246 [Fla. 2006], adopted revisions to, as well as completely new, rules which, among other things, specifically impact lawyers acting as mediators or as other types of third-party neutrals. Specifically, take a look at the amendments to Rule 4-1.12 Former Judge Or Arbitrator, Mediator Or Other Third-Party Neutral [pages 62-63] and a brand new rule, Rule 4-2.4 Lawyer Serving As Third-Party Neutral [pages 84-85].
Rule 4-2.4 Lawyer Serving As Third-Party Neutral provides:
(a) A lawyer serves as a third-party neutral when the lawyer assists 2 or more persons who are not clients of the lawyer to reach a resolution of a dispute or other matter that has arisen between them. Service as a third-party neutral may include service as an arbitrator, a mediator, or in such other capacity as will enable the lawyer to assist the parties to resolve the matter.
(b) A lawyer serving as a third-party neutral shall inform unrepresented parties that the lawyer is not representing them. When the lawyer knows or reasonably should know that a party does not understand the lawyer's role in the matter, the lawyer shall explain the difference between the lawyer's role as a third-party neutral and a lawyer's role as one who represents a client.
So, what additional language will you be including in your mediation confirmation [or engagement] letter? You do use one, right?
Also, the Comments [which are very interesting] to each of the above rules specifically state that “[a] Florida Bar member who is a certified mediator is governed by the applicable law and rules relating to certified mediators”. [Emphasis added.] This blends nicely with Florida Rules for Certified and Court-Appointed Mediators, Rule 10.650 Concurrent Standards:
“Other ethical standards to which a mediator may be professionally bound are not abrogated by these rules. In the course of performing mediation services, however, these rules prevail over any conflicting ethical standards to which a mediator may otherwise be bound.”
All to say, this opinion is a must read!
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