Lawyer-Mediators and ABA Opinion 518: Ethics in Evolution
1.27.2026
The American Bar Association Standing Committee on Ethics and Professional Responsibility, in issuing Formal Opinion 518 in October 2025, has done the mediation field a favor, although not every individual mediator may agree. In revisiting lawyer-mediator obligations when dealing with unrepresented parties and clarifying a neutral’s obligations to be truthful in an environment where negotiation deceptions abound, the opinion has prompted wide-ranging conversations about the permissibility of various tactics used to encourage settlement. Blanket confidentiality protections, while useful in encouraging party frankness, have the unintended effect of dampening discussion of specific mediator maneuvers, including moves that might shade into misrepresentation. In focusing a spotlight on permissible strategies versus impermissible manipulations, Opinion 518 reminds us that the process only works so long as the integrity and trustworthiness of the mediator remain paramount.
The Doctrinal Divergence: Why Mediators Face Stricter Standards
Before examining the opinion’s specific guidance, it is essential to understand the doctrinal foundation that creates asymmetric obligations for lawyer-mediators compared to lawyers representing parties in negotiation. This asymmetry is not accidental but reflects the fundamentally different roles these professionals occupy and the distinct reliance interests they create.
The Advocate’s Safe Harbor: Rule 4.1 and Comment 2
As a reminder, Model Rule 8.4(c) imposes a “no-lie” zone for attorneys in both their personal and professional lives, prohibiting conduct involving “dishonesty, fraud, deceit or misrepresentation.” Rule 4.1 forbids a lawyer “in the course of representing a client” from “making a false statement of material fact or law to a third person.” However, as every practicing negotiator knows, Comment 2 carves out an exception to these rigorous probity requirements by categorizing “a party’s intentions as to an acceptable settlement of a claim” and “expressions of opinion as to the value or worth of the subject matter of the negotiation” as falling outside the category of material facts. Consequently, lawyers who are functioning in a representational capacity have a hall pass to puff, exaggerate or misrepresent their clients’ valuation of the case and willingness to settle.
As ABA Formal Opinion 06-439 articulates, counsel, in their role as advocate, may “downplay a client’s willingness to compromise” or engage in “overstatements or understatements of the strengths or weaknesses of a client’s position” without triggering Rule 4.1 or 8.4(c) liability. In practical terms, this means that a lawyer representing Party A can say “This is our final offer” when it is not, or can vastly overstate the strength of their case, and these statements fall outside the prohibition on false statements of material fact. All participants in the negotiation understand this dynamic and appropriately discount such assertions.
The Neutral’s Obligation: Rule 8.4(c) Without Exception
Lawyer-mediators, however, occupy different ethical terrain. Because they represent no party, Rule 4.1 does not apply to them – they are not representing a client in the mediation. They remain subject to Rule 8.4(c)’s prohibition on conduct involving “dishonesty, fraud, deceit, or misrepresentation,” but critically, that rule applies without the negotiation convention safe harbor that Comment 2 to Rule 4.1 provides.
Opinion 518’s animating principle is straightforward: “False statements that would not be regarded as statements of ‘material fact’ under Rule 4.1, or violate Rule 8.4(c), coming from a party’s lawyer are likely to be taken at face value coming from a lawyer-mediator precisely because of the lawyer-mediator’s role as a neutral.”
The Reliance Rationale
This doctrinal distinction rests on a reliance rationale. Parties engage opposing counsel with appropriate skepticism. They expect posturing, discount hyperbole, and take advocacy communications with a heavy dose of salt. But the lawyer-mediator’s institutional role fundamentally alters the communicative context.
Mediators, having presented themselves as honest brokers and above the competitive fray, have implicitly encouraged the parties to view what they say as wholly credible. “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.” Having been informed under Rule 2.4(b) that the mediator represents no party and serves a facilitative rather than representative function, parties reasonably expect unvarnished assessment. The mediator’s neutrality creates enhanced reliance interests that Rule 8.4(c) protects and the puffing permission accorded advocates by 4.1 is simply inapplicable.
Clarifying the Mediator’s Role to Unrepresented Parties
Opinion 518, formally titled, “A Lawyer’s Duties To Avoid Misleading Communications When Acting as a Third-Party Neutral Mediator,” seeks to clarify two obligations. The first is set out in Rule 2.4 of the Model Rules of Professional Conduct and receives support in Standards I(A)(2) and VI(A)(5) of the AAA/ABA/ACR Model Standards of Conduct for Mediators. Essentially, Opinion 518 reiterates the lawyer-mediator’s responsibility to ensure that parties understand the difference between a lawyer’s role and function when operating as a third-party neutral as opposed to when functioning in a representational capacity.
It is critical that parties, especially when unrepresented or unfamiliar with the process, understand this role differentiation and appreciate how the constraints imposed by the mediator’s neutral status will affect them throughout the process. Although emphasizing that the depth and detail of the role differentiation discussion will differ depending on the sophistication of the parties, the opinion suggests that simply saying, “I am a lawyer, but not YOUR lawyer in this process” is insufficient. Rather, the opinion repeats Rule 2.4’s suggestion that mediators delve into such matters as the inapplicability of the attorney-client evidentiary privilege and advises that instead of simply issuing blanket statements in a retainer agreement or introductory remarks, mediators offer parties an opportunity to discuss what the lack of an attorney-client relationship with the mediator means in terms of the parties’ ability to develop fully informed judgments on the choices they face throughout the process.
The ‘Best Interest’ Prohibition
Although reminding lawyer-mediators of their duties to explain their role as neutrals hardly breaks new ground, the opinion’s identification of one purported consequence of the non-partisan stance does introduce a restriction that some may view as problematic. In delineating the difference between lawyer as counsel versus lawyer as neutral, the opinion states:
“Under the Model Rules, a lawyer must act in the client’s interest. Various provisions of the Model Rules give expression to that responsibility, however, that is not the role of a lawyer-mediator. The lawyer-mediator’s role is to assist the parties in resolving their dispute, regardless of where the interest of the party may lie.”
As a consequence, the opinion circumscribes the commentary that a mediator might offer in the service of helping a party think through the possible benefits of accepting a particular offer. The opinion notes:
“The obligation to avoid misleading the parties about the lawyer-mediator’s role also means that, in conducting the mediation, the lawyer should not state that … a proposed settlement is in a party’s best interest. … Otherwise, the party may rely on the lawyer-mediator’s assurance, mistakenly believing that the lawyer-mediator is acting in the party’s best interest as the party’s lawyer.”
I confess that I always thought of my job as a mediator as helping both parties reach outcomes that, for each of them, was better than the alternative of surrendering decisional authority to a factfinder unaware of the goals, needs and interests animating the conflict. Opinion 518’s stark declaration that a mediator’s goal is to help the parties reach an agreement, irrespective of whether that agreement is in a (or either) party’s best interest does not sit comfortably. The opinion seems to consign mediators to the limited role of dispute settlement functionary, focused solely on closure regardless of consequence. The goal of achieving pareto-optimizing, interest-satisfying outcomes is reserved for parties and counsel.
Formulated by legal ethicists, not mediators, it is perhaps unsurprising that Opinion 518 presents a competitive, hyper-adversarial vision of the negotiation process, one where the best interests of one party is ineluctably achieved through the corresponding detriment of the other. We mediators, when striving to help incorporate the relational, emotional, reputational and even spiritual impacts of a dispute into the parties’ calculus, like to imagine our work as helping parties reach a place of agreement where they are both better off than where they started and will likely end up if they continue in discord. Even if one party might, in settling in mediation, relinquish the satisfaction of a complete judicial victory, the field’s premise is grounded in the assumption that both parties benefit from a cessation of hostilities and the preservation of financial, psychological and creative resources for other pursuits. If we are not committed to offering services designed to improve outcomes for parties, both individually and as a dyad, as compared to the alternatives they face in court or elsewhere, then I am not sure what value, as a field, we are offering.
The Legal Information/ Legal Advice Boundary: Shifting Goal Posts
Part of the assistance mediators provide is helping parties think through the various risks, benefits and other consequences of choosing to settle versus continuing to negotiate or gambling on a courtroom verdict. All mediators would agree that when a party is represented, it is surely the attorney’s – not the mediator’s – role to advise whether to settle and on what terms. But the question of how to respond when a pro se party asks for guidance in the mediation process requires a more nuanced answer. Of course, the mediator must remind the unrepresented party that he or she is not their lawyer and cannot proffer legal advice. And all our ethical codes, including Opinion 518, recommend advising parties to “seek legal advice from counsel of their choice.” But what if outside legal counsel is not available or affordable? What then?
While the opinion does not answer this perennial thorn in the thoughtful mediator’s side, it does offer some guidance on what a mediator can and cannot say when trying to help parties reflect on the degree to which an offer satisfies their interests. While a mediator should be careful with both represented and unrepresented parties to avoid communicating in a way that parties might misinterpret as the rendering of legal advice, mediators may:
“Provide legal information or discuss the parties’ respective views of how a tribunal would resolve a legal or factual question. A mediator may offer an opinion as to how a tribunal is likely to rule on an issue, but the lawyer-mediator should not state or imply that a settlement is in the party’s best interest because a tribunal is likely to decide adversely to the party.”
In other words, it would seem acceptable for an evaluative mediator to lead a party toward settlement waters with truthful information and modest prediction so long as he or she avoids telling the parties that drinking would be in their best interests. Translating this into the mediation context, a mediator could say, “I suspect a fact-finder would likely determine the damages in this case to be somewhere in the range between a quarter and a half million dollars,” but cannot follow up that prediction with, “and therefore, given the costs and stress of litigation, I think it is in your best interest to take the defendant’s offer of $400,000.”
In parsing what exactly a lawyer-mediator can and cannot say when helping parties think through their options, the opinion, perhaps inadvertently, makes its greatest contribution to the mediation ethics canon. It highlights the analytical shortcomings surrounding a formulation that our field treats as settled, but is, in fact, in transition.
Ethical codes, in an effort to encourage informed party decision-making and discourage heavy-handed mediator intrusion, almost uniformly parrot the same mantra. Mediators can offer legal information but must steer clear of legal advice. Yet this distinction is not uniformly defined or understood. And, indeed, it would seem that the goalposts are moving.
In 1999, the North Carolina courts noted that a mediator could “pose questions regarding the feasibility of a proposed settlement, but should … at no time … express an opinion about or advise for or against any proposal under consideration.”[1] In 2000, the Dispute Resolution Commission of the Virginia courts identified a similar dividing line, stating that mediators, lawyers and non-lawyers alike, could offer general legal information in the form of brochures, statutes or cases, but could not “apply legal principles to facts in a manner that … predicts a specific resolution of a legal issue … or recommends a course of action by a disputant as a means of resolving a legal issue.”[2]
Twenty-five years on, the mediation world – and ethics guidance – is changing. The current standards governing North Carolina’s court-connected mediators advise practitioners that their first move when asked by disputants for their opinion is to encourage parties to utilize “their own resources” and avoid “imposing the mediator’s view of the merits of the dispute or the acceptability of any proposed settlement.” However, the drafters clarify that “this subsection does not prohibit a mediator from expressing his or her opinion as a last resort to a party or attorney who requests it. …”[3]
Rule 3.857 of the California Rules of Court states that a California mediator may provide information or opinions that he or she is qualified by training or experience to provide, and further Advisory Committee commentary clarifies that a mediator may opine on a “set of facts as presented” or express a “view of what the law is or how it applies to the subject of the mediation, provided that the mediator does not also advise any participant about … what position the participant should take in light of that opinion.”[4]
The Florida Standards of Conduct for mediators leads with the admonition that mediators must not offer a personal or professional opinion intended to coerce the parties, unduly influence the parties, decide the dispute or direct a resolution of any issue. But this statement is followed by a grant of permission to “point out possible outcomes of the case and discuss the merits of a claim or defense.”[5] Clarifying commentary specifies that a mediator may “raise issues, discuss strengths and weaknesses of positions and help evaluate resolution options.” What a mediator can’t do is opine on how the particular judge assigned to the case will resolve the matter if the parties don’t settle.[6]
Following the permissive track set down in Florida, California, North Carolina and elsewhere, Opinion 518 invites lawyer-mediators to evaluate the strength of the parties’ legal arguments and “offer an opinion as to how a tribunal is likely to rule on an issue,” so long as the evaluation does not conclude with a concrete directive. Given that we have now redefined “legal information” to include the predictive application of law to the parties’ specific facts, one might sensibly ask what work the prohibition against legal advice is doing. The opinion acknowledges as much when it states: “The lawyer-mediator may, of course, provide truthful information that helps the parties to conclude for themselves, or even makes it obvious to them, whether a proposed resolution is in their best interest, given their objectives.”
If a mediator can provide sufficient legal information to make settlement desirability obvious to a party, and the only bar is to avoid the talismanic language “you should take this offer as it is in your best interest,” we have to question whether the legal information/advice distinction continues to serve as a meaningful ethical boundary or merely formalistic distinction. Perhaps it is time to openly discuss the compromises we have struck in our effort to encourage informed party deliberations and respond to market demands for mediator input and evaluation. Surely, as ethical guidance increasingly acknowledges the prevalence of mediator influence on party decision-making, it is incumbent on counsel to schedule preliminary discussions with prospective mediators to ensure that the process the mediator plans to deliver aligns with counsel and parties’ expectations.
Communicating With Parties: Avoiding Dishonesty, Fraud, Deceit and Misrepresentation
The second topic that Opinion 518 addresses is the lawyer-mediator’s duties of scrupulous honesty when communicating with parties. While acknowledging that mediators, in conveying information learned in one caucus room to parties waiting in another, will “often provide mediation-appropriate insights” to help parties evaluate settlement opportunities, the opinion notes that the interplay of Rule 8.4(c) and Rule 4.1 Comment 2 imposes limits on what a mediator can say.
As noted earlier, whereas attorneys can bluff and bluster about how they value their case and what their clients will settle for, mediators cannot independently engage in the same behavior and cannot place their own imprimatur on a party or counsel’s statement if they know that statement to be untrue.
Practical Implications
One obvious implication of Opinion 518 is explicitly stated in the text: “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.”
For example, if counsel to Party A says in caucus, “We are offering $100,000 and this is our last and best offer,” the mediator may safely convey to Party B that an offer of $100,000 has been made and that Party A says it is their last and best offer. What the mediator cannot do is lend credence to Party A’s claim of immovability and finality, if the mediator knows it not to be true. A mediator may carry a party’s “dirty water” – meaning carry an attorney’s misleading hyperbole and downright misstatements that enjoy the safe harbor of Rule 4.1’s Comment 2 from one caucus room to the other. But the mediator should not give credence to such statements, if the mediator knows them to be false, by suggesting that the mediator credits them and implying that the opposing party should as well.
One may ask about the impact of Opinion 518 on other common mediator behaviors. Take the commonly deployed technique that is presented in training programs as a clever dodge for defusing reactive devaluation bias. One party has a settlement idea; it’s creative and it entails moving off a previously affirmed “final offer.” But the party does not want to claim ownership of the idea because of fears that it makes him or her look weak. So, the party asks the mediator to present the idea as his or her own. Can the mediator do so?
Surely, the mediator could carefully wordsmith language to obscure agency by saying “an idea emerged in my discussion with the other side.” And maybe, if asked point blank, “Was it the other side’s idea?” the mediator could respond, “It seems like a good idea; does it matter?” But colloquies that previously did not require a mediator to deliberate over whether a response constitutes a little white lie now require more attention. As the opinion states, mediators need to be “thoughtful and cautious” as they continue to try and help parties find common ground in an environment where negotiators are allowed to adopt a slippery relationship to certain truths and where “imperfect information” is the coin of the realm.
Bright-Line Do’s and Don’ts
Although incorporating the opinion’s statements into practice requires nuance, we can extrapolate the following prescriptions.
- Representations concerning settlement parameters. A mediator cannot state “this is the best offer the opposing party will make” when that assertion is false. Such statements, while potentially permissible from party counsel as negotiation puffery, constitute actionable misrepresentation from a neutral. The prohibition extends to “any inappropriate gloss in describing to one party the position that the other party is taking.” The mediator must convey party positions with precision, resisting the temptation to enhance their persuasive force through strategic reframing.
- Crediting known falsehoods. Even when accurately conveying party representations that constitute permissible negotiation puffery, the mediator cannot “give credence” to statements the mediator knows to be false “by suggesting that the lawyer-mediator credits them or by implying that the opposing party should do so.” The mediator may transmit party statements that would qualify as puffery if made by counsel (assertions about settlement willingness, case valuation, or litigation strength) but must maintain clear attribution and avoid any communicative act that validates the substance.
- Transparent conveyance. Mediators may relay party statements, including those that would constitute negotiation puffery from counsel, “as long as the lawyer-mediator makes clear the origin of such statements and that the statements do not represent an opinion of the lawyer-mediator.”
- Facilitative information. The mediator may “provide truthful information that helps the parties to conclude for themselves” whether a resolution serves their objectives. The distinction lies in enabling party self-assessment rather than usurping it. Determining how the delivery of information, including mediator opinion and forecasting, will function in any particular dispute scenario remains murky and a matter of debate.
Conclusion
When it comes to navigating the tricky lines between facilitation, manipulation and deception, ABA Formal Opinion 518 clarifies what many practitioners intuitively understood but lacked the doctrinal framework to articulate: neutrality imposes distinctive obligations that transcend those applicable to advocates. By explicitly acknowledging that Rule 8.4(c) operates asymmetrically across professional roles, and in demanding greater communicative precision from neutrals precisely because neutrals occupy positions of enhanced trust, the opinion reminds lawyer-mediators of their obligations of probity and fidelity to the truth.
In limning the familiar contours of the information/advice divide and expanding the definition of “legal information” to include opining on probable judicial outcomes, the opinion underscores the increasingly porous nature of a line that has traditionally undergirded the ethical structure of the field. In so doing, the opinion has sparked useful conversation and should lead us to continue to ponder whether the conceptual structures erected in the field’s infancy continue to supply useful guidance to a now established and ever-maturing profession.
This article appears in a forthcoming issue of NY Dispute Resolution Lawyer, a publication of the Dispute Resolution Section. For more information, please visit nysba.org/DRS.
Ellen Waldman, a law professor for 27 years, taught mediation, therapeutic jurisprudence, and mediation ethics and founded her school’s mediation clinic. She has published extensively on dispute resolution, edited “Mediation Ethics: Cases and Commentaries,” the first book-length treatment of mediation ethical dilemmas, and most recently was vice president of advocacy and educational outreach at the International Center for Conflict Prevention and Resolution (CPR). The author would like to recognize the invaluable contributions of Akshatha Achar, a recent graduate of Brooklyn Law School and former intern at CPR. Ms. Achar’s insightful discussion of the doctrinal basis of the opinion, published on the CPR blog, served as a building block for this piece (see CPR Speaks) and her comments on this essay helped clarify and sharpen its message.
Endnotes:
[1] Standards of Professional Conduct for Mediators (1999), Standard V(B) Self Determination, available at https://appellate.nccourts.org/SPCM/350_N.C._865-71.pdf.
[2] Mediation and the Unauthorized Practice of Law, at 12, available at https://www.courts.state.va.us/static/courtadmin/aoc/djs/programs/drs/mediation/resources/upl_guidelines.pdf.
[3] Standards of Professional Conduct for Mediators (2025), Standard V.(b)(c) Self Determination, available at https://www.nccourts.gov/assets/inline-files/Standards-of-Professional-Conduct-for-Mediators-Codified-6-January-2025.pdf?VersionId=W93zVXEjduTOdbxpQ8f9wQmVT0zXfX7P.
[4] California Rules of Court Rule 3.857 (d) Representation and other professional services; Subdivision (d) Advisory Committee Comment available at https://courts.ca.gov/cms/rules/index/three/rule3_857.
[5] Rules for Certified and Court Appointed Mediators, Rule 10.370, Advice, Opinion or Information available at https://flcourts-media.flcourts.gov/content/download/219330/1981926/Mediator-Rules-Tab-3.pdf.
[6] See supra note 5, 2000 Revision, available at https://flcourts-media.flcourts.gov/content/download/219330/1981926/Mediator-Rules-Tab-3.pdf.
