NYSBA Committee on Professional Ethics – Mediator: Opinion 1178

Listen to this article

New York State Bar Association Committee on Professional Ethics

Mediator

Individual meetings with divorcing parties – Flat rate fee

Ethics Opinion 1178

Background: The inquiring attorney intends to become a mediator and plans to focus on mediating cases involving parties who would otherwise seek a contested divorce. He anticipates that the parties may find that meeting individually to discuss the issues that need to be resolved in order to submit their agreement to the court would be beneficial. The inquiring attorney intends to charge an upfront, flat rate of the mediation services.

Opinion: The Committee concluded that a lawyer-mediator engaged in providing third-party neutral services is subject to Rule 2.4 but not the Rules that govern the representation of clients. As such, the lawyer-mediator is generally free to conduct the mediation in the way the lawyer thinks best, and to charge whatever fee may be appropriate, provided always that the lawyer fully discloses to the parties that the lawyer is acting as a disinterested mediator and not as counsel to any party, including the consequences of that difference. In the event of an agreement, the lawyer-mediator may memorialize the parties’ understanding in a document and may appear as counsel for one party (but not both) in filing a divorce action if the other party gives informed consent confirmed in writing.