ABA Ethics Opinion 518 and Its E4ects On Mediators,Mediation, and Mediator Proposals
By: Paul F. Monicatti
I. Introduction
Last fall the American Bar Association (ABA) Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 518 (https://www.americanbar.org/
II. Possible Reasons for the Ethics Opinion
There is no legislative history or extrinsic background information for ABA ethics opinions. Presumably, this is to protect the Ethics Committee’s confidential and candid deliberations on ethical issues, to insulate the Committee from outside influences, and to make the Opinions self-contained so that they stand on their own. Therefore, we can only make educated guesses of reasons why this particular opinion was issued, including the following:
A. To draw a line between permissible suggestion and prohibited recommendation by lawyer-mediators.
B. For protection of the fundamental mediation principles of party selfempowerment and self-determination.
C. Growing trend of evaluative mediators such as retired judges and subject matter experts who are accustomed to giving their subjective opinions.
D. Public policy to encourage aNordable access to “justice” and our “legal system” including use of:
1. Mediation without legal representation, and
2. Limited scope representation whereby parties engage a lawyer to handle only certain designated aspects of a legal matter and the client remains responsible for all other aspects on their own or with the lawyer’s advice.
E. Given the high cost of legal representation and litigation, mediation without legal representation is an attractive alternative.
F. Prevalence of unrepresented parties in family and probate mediations.
The growth of artificial intelligence use presents its own set of challenges for
mediators, a sort of “the Good, the Bad, and the Ugly” of AI. The Good of AI in the mediation context is that it facilitates direct engagement by unrepresented parties in mediation by giving them confidence that they can submit professional looking written pre-mediation materials and competently participate during mediation without the assistance of lawyers. The Bad of AI is that it frequently misinterprets procedural and substantive law. And the Ugly of AI is its citation of fabricated, inapplicable, or unsupported legal authority as well as faulty legal reasoning.
III. The Ethics Opinion’s Three Essential Holdings Regarding A Lawyer’s Duties to Avoid Misleading Communications When Acting as a Third-Party Neutral Mediator
A. Under Rule 2.4(b) of the ABA Model Rules of Professional Conduct, a lawyer acting as a third-party neutral must inform unrepresented parties that the lawyer-mediator does not represent them (emphasis added).
B. Under Rule 2.4(b), a lawyer-mediator is required to explain the di3erence between the lawyer-mediator’s role as a third-party neutral and the role of a lawyer representing a client in a mediation when the mediator knows or reasonably should know that the parties do not understand the mediation process (emphasis added).
C. Under Rule 8.4(c), a lawyer-mediator is prohibited from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, or giving credence to statements the lawyer-mediator knows to be false, or personally making statements the mediator knows to be false or personally making statements the mediator knows to be false (emphasis added).
IV. The Ethics Committee’s Comments on Its Opinion
A. A lawyer-mediator has a duty to avoid statements that imply that the
lawyer-mediator is not neutral but rather is seeking to achieve a party’s
best interests. A lawyer-mediator’s role is to assist the parties in resolving
their dispute, regardless of where the interest of the parties may lie.
B. A lawyer-mediator’s duty to avoid dishonesty, fraud, deceit, and
misrepresentation when communicating with the parties includes
avoidance of standard negotiation conventions such as:
1. “PuNery”,
2. Statements regarding a party’s goals or willingness to compromise,
3. Overstatements or understatements as to value, or
4. Bottom lines.
The rationale behind this is, given the lawyer-mediator’s neutrality,
parties are likely to trust the lawyer-mediator to play it straight and to
not exaggerate or make false statements designed to lead the parties
to an agreement.
C. Therefore, it follows that a lawyer-mediator must be both thoughtful
and cautious in communicating information from one party to the other
and in answering questions that may be asked about the information
communicated or about the lawyer-mediator’s views of the
information.
V. Key Takeaways and Best Practices
A. Lawyer-mediators must be circumspect about what they say because
their neutrality increases reliance whereby parties may be inclined to
over-rely on mediator authority. After all, a mediator’s stock in trade is
making personal connections, building rapport, and earning trust and
confidence from the parties.
B. Lawyer-mediators must remain totally neutral and act in the interest of
process integrity while pursuing a mutually acceptable resolution and
not act as lawyer-advocates who serve their client’s best interest.
C. The danger to avoid is role confusion by unrepresented or
unsophisticated parties and possibly by mediators who unwittingly
can’t resist the temptation to eagerly help the parties and give advice
so that they can settle their diNerences and reach closure, move on,
and buy their peace.
D. Best practice for lawyer-mediators in every mediation involving
unrepresented parties should be to routinely add to their standard
mediation agreement for the parties to acknowledge, the caveat that
they do not represent any mediation participant and cannot under any
circumstance give them any legal advice.
E. Best practice for lawyer-mediators should be to routinely add to their
standard written mediation agreement for the parties to acknowledge,
a detailed explanation of the diNerence between the lawyer-mediator’s
role as a third-party neutral and the role of a lawyer representing a
client in a mediation. This caveat should be implemented routinely for
every mediation involving unrepresented parties regardless whether
the lawyer-mediator knows or should know that a party doesn’t
understand the role distinction or the mediation process.
F. Best practice for lawyer-mediators should be to always avoid vouching
for the veracity of any information given by a party or counsel during
mediation, not just puNery, statements about their goals or willingness
to compromise, value, or best offers.
VI. The Ethics Opinion’s Effect on Mediators Who Are Not ABA Members
or Are Not Lawyers
According to David HoNman, former chair of the ABA Section of Dispute
Resolution, Harvard Law School lecturer in various ADR courses, and
distinguished ADR professional, in his recent article entitled “The ABA’s New
Ethics Opinion on Mediation: FAQs” (https://mediate.com/the-abas-new-ethicsopinion-on-mediation-frequently-asked-questions/) written after
Formal Opinion 518, he discussed these two issues as follows:
A. Regarding non-ABA member lawyers, although most states tend to
adhere to the ABA’s formal opinions, Opinion 518 is not self-enforcing
and therefore serves only as an advisory opinion unless and until it is
adopted by a state as a valid application of the legal ethics rules
enacted in that state.
B. Regarding non-lawyers, the ABA ethics opinion does not affect them
directly. But because of the large numbers of lawyers serving as
mediators and the influence of the ABA’s ethics opinions on lawyers’
conduct, the Opinion could have at least a ripple eNect on the
interpretation of ethical standards in the mediation community.
VII. The Ethics Opinion’s Effect, If Any, On Mediator Proposals – –
If Done Right, Mediator Proposals Should Not Violate It Provided
That They Are:
A. Presented strictly for settlement purposes only as a practical
compromise on terms for which the dispute might be settled but
not as advice, a recommendation, or prediction of the outcome should
the case eventually go to trial. It is an educated guess, based on what the
mediator has read, seen, or heard as part of the mediation process, of
what might be an acceptable settlement which perhaps disappoints
both sides yet it’s something they both might be able to live with given
the risky alternatives in court.
B. Not evaluating the relative merits or value of a case, which would
negate neutrality.
C. Not suggesting that the proposed settlement is in a party’s best
interest.
D. Conveying only truthful information which helps the parties to
conclude for themselves, or even makes it obvious to them, whether a
proposed resolution is in their best interest.
E. Relegated to an option of last resort after all other mediator techniques
have been exhausted and failed to yield a settlement, because they
potentially undermine mediator neutrality which is a core value of
mediation, and only when requested by counsel and/or parties.
F. Not standard operating procedure (SOP) in mediation, and here’s why:
1. At best this could have a chilling aNect not only on the parties’
candor with the mediator in acknowledging the downsides of
their case but also on their problem solving eNorts and generation of
their own solutions which are essential principles of mediation.
2. At worst, savvy negotiators could attempt to manipulate the
negotiation process to set up a favorable mediator proposal by
withholding information and limiting their oNers made during
mediation in order to create their desired impasse gap.
3. Either way, if mediator proposals are SOP, the process is not
mediation, it is case evaluation.
VIII. Additional Thoughts on Mediator Proposals
A. In his article entitled “The Limitations of Mediator Proposals”(https://legalnews.com/Home/Articles?DataId=1588260) written before
Formal Opinion 518, this author points out that use of mediator
proposals is somewhat controversial within the professional mediation
community. For some practitioners, they can be a relatively easy and
effective way to break a perceived impasse yet, for others, they
undermine core values of mediation, especially party selfdetermination
and mediation neutrality.
His article discusses several other options available to the parties, before
resorting to mediator proposals, for them to attempt first which would
allow them to retain exclusive control over the outcome instead of
deferring to an outside third party. Nevertheless, a limited number of
situations in which mediator proposals have been found particularly
suitable are noted. Ultimately, the question is whether mediator
proposals strengthen or weaken the integrity of mediation and its core
values, especially when unrepresented or unsophisticated parties are
involved.
B. In his article entitled “Mediator’s Proposals – Done Right”(https://www.dailyjournal.com/article/390337-mediator-s-proposalsdone-right),
written after Formal Opinion 518, prominent California mediator JeN Kitchaven
noted that there is a third option to settle a dispute in mediation besides the
traditional methods of either the parties reaching a mutually acceptable figure themselves by negotiation or receiving a number from their mediator in the
form of a proposal. He calls this third method the vetted mediator proposal, a
different kind of partnership between mediator and legal counsel, in which
each person plays a vital, active role. As JeN describes it:
“In this third paradigm, mediators create the crucible in which lawyers fight
for their clients’ interests. They negotiate. They test limits. They bluN when they
can and compromise when they must. The mediator stewards the negotiation
and ensures it reaches is logical end – a number each lawyer can recommend.
That logical end can then be put into the form of a mediator’s proposal, one which validates, and does not replace, the lawyers’ independent judgment about the best available deal.”
Obviously, his analysis doesn’t contemplate mediation involving unrepresented parties without lawyers to advocate for their best interest. However, it does address the Ethics Committee’s concern about lawyer-mediators creating the impression that they will be protecting the parties’ interests because that is left for their retained counsel to fight for.
IX. Additional Thoughts on ABA Formal Opinion 518
In another excellent article entitled: “Don’t Mislead Mediation Participants:
What ABA Formal Opinion 518 Teaches Attorney-Mediators” (https://premiadr.com/2026/02/25/dont-mislead-mediation-participantswhat-aba-formal-opinion-518-teaches-attorney-mediators) analyzing ABA Formal Opinion 518,
my PREMi colleague Robert Wright emphasized among other things the added dimension of unrepresented parties participating in court-connected mediations. In such instances, lawyer-mediators must takeextra care to explain what neutrality means in practice and then conduct their mediations accordingly. When their participation in mediation is courtordered, unrepresented parties may feel that they are being guided in mediation by the judicial system itself.
X. Conclusion
The ABA’s Formal Opinion 518 protects unrepresented and unsophisticated parties in mediation from getting the mistaken impression that the lawyermediator is acting to protect their best interests. It also heightens the awareness of lawyer-mediators to be mindful and pay careful attention to what they say and do in mediations involving such parties. And it indirectly affects the use
and formulation of mediator proposals.
Paul is a senior member of Professional Resolution Experts of Michigan (“PREMi”), Michigan’s premier group of seasoned, invitation-only mediators and arbitrators.
An attorney since 1978, arbitrator since 1983, and mediator since 1986, he has served in nearly every neutral role, including courtappointed mediator, settlement master, arbitrator, case evaluator, receiver, umpire, referee, and expert witness. He has received top honors from Martindale-Hubbell, Best Lawyers® in America, Super Lawyer, Leading Lawyers, U.S. News & World Report, Crain’s Detroit Business, and Who’s Who Legal: Mediation. In 2019, Michigan Lawyers Weekly named him a Leader in the Law, and Best Lawyers® has named him Lawyer of the Year in mediation, arbitration, or ADR five times.
Other recognitions include the State Bar of Michigan ADR Section’s Distinguished Service Award (2024), the International Academy of Mediators’ Certificate of Recognition (2024) for elevating the visibility of women in ADR and encouraging gender equality for women worldwide, and the Center for ADR in Maryland’s Recognition Award (2017) for dedicated service and commitment to the needs of
its culturally diverse community.
He has authored or co-authored ADR chapters in Michigan Civil Procedure (ICLE, all three editions), taught ADR advocacy at Western Michigan University Cooley Law School, and co-founded ADRoit Dispute Resolution, Strongbridge Negotiation Strategists, and the International Academy of Mediators. He has also co-authored
and co-edited with PREMi collegues Richard Hurford and Lisa Taylor, The ABCs of
ADR and So Much More: A Complete Practice Guide for Judges and Lawyers With Practical Pointers and Sample Forms (2026).