ABA Allows Mediators to Draft Divorce Settlement Agreements With Appropriate Party Consent

ABA Standing Committee on Mediator Ethical Guidance, Mediator’s Duty of Care in Drafting Agreements,Op. SODR2010-1 (2010))

The ABA Standing Committee on Mediator Ethical Guidance opined that a mediator may draft divorce settlement agreements for unrepresented parties so long as he or she advises the parties to have the agreement reviewed by independent counsel and the parties consent to the mediator’s new role. Further, to the extent that the mediator acts as more than a scrivener (i.e., by providing legal advice or adding language to the agreement), he or she is likely engaged in the practice of law, thus implicating unauthorized practice of law restrictions and possibly requiring the parties’ consent to joint representation.

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