Nonlawyer Mediators and the Unauthorized Practice of Law
Do you have to be a lawyer to serve as a mediator? The answer is currently NO in every U.S. jurisdiction. However, two states (North Carolina and Virginia) have enacted guidelines which set forth instances when a nonlawyer mediator will be considered to have engaged in the unauthorized practice of law. The short article below describes the current state of the law regarding the unauthorized practice of law and mediation. Then, the article offers some possible steps that nonlawyer mediators participating in the REALTOR® mediation process can take to avoid unauthorized practice of law allegations.
In February 2002, the American Bar Association's ("ABA") Section of Dispute Resolution promulgated a resolution it had created on mediation and the unauthorized practice of law. Go to http://www.mediate.com/articles/abaupl.cfm# to download the resolution. The resolution calls for laws clarifying that mediation does not constitute the unauthorized practice of law. The document also summarizes the current state of law.
As set forth in the ABA resolution, a number of states have enacted legislation which expressly states that mediation does not constitute the unauthorized practice of law. However, the article also describes how North Carolina and Virginia have both enacted "guidelines" which describe the behavior by a nonlawyer mediator which will constitute the unauthorized practice of law. While the guidelines do not prohibit nonlawyers from conducting mediations, they do prohibit a nonlawyer mediator from providing legal advice (although they do not prohibit the providing of "legal information," such as brochures). The unauthorized practice of law appears to occur when the nonlawyer mediator begins to apply legal analysis to the specific fact situation which is the subject of the mediation, but what constitutes legal information and what constitutes legal advice is not very well defined in either state's guidelines. If other states follow the Virginia and North Carolina models, then the main danger for a nonlawyer mediator participating in the REALTOR® mediation process will be in the crafting of settlement agreements as well as the mediator's discussion of legal issues during the mediation (for example, the BATNA forecasting).
An article on the ABA site offers advice on how to avoid unauthorized practice of law allegations. Go to http://www.abanet.org/dispute/upltips.html to download the article. The REALTOR® mediation model already addresses most of the points raised in the article. Based on the ABA recommendations, additional steps a nonlawyer mediator participating in the REALTOR® mediation process may want to take is the inclusion of the disclaimer language similar to that found in the ABA document in the "agreement to mediate" forms used by the mediator's association. Also, a nonlawyer mediator participating in the REALTOR® mediation process should be very careful in drafting settlement documents.