Legal Advice during Mediation

What if a mediator believes that the parties’ settlement agreement is legally unenforceable?  Should he or she advise the parties of this belief?

The answer to both of these questions is “no.”  A mediator must refrain from providing legal advice to the parties.  It is difficult to fathom a clearer instance of violating this norm than telling the parties their agreement fails to pass legal muster.

A mediator should remember that other players are responsible for ensuring that a settlement agreement complies with the law.  In a court-referred mediation, the judge assumes this role.  In other contexts, the attorneys representing the parties do so.

What if a party lacks legal representation?  In this situation, the mediator should reiterate what he or she should have conveyed at the outset of the mediation: that each party is entitled to consult with an attorney before signing any settlement agreement.  Taking this step accords with the mediator’s role as facilitator, rather than legal adviser, and also reinforces the core mediation principle of party self-determination.

Contributor: Ben Jacewicz, NVMS Mentor Mediator