Defining the Third-Party Neutral

Lawyer as Third-Party Neutral

Defining the Third-Party Neutral

Rule 2.4(a) defines the role by what the lawyer does and for whom she does it: a lawyer serves as a third-party neutral when she assists two or more persons who are not her clients to reach a resolution of a dispute or other matter that has arisen between them.¹ Three elements carry the sentence. The lawyer must assist, which means she helps the parties toward an outcome. There must be two or more persons with a matter between them, so she works with a relationship and not for one side of it. And none of those persons may be her client. The third element does the sorting, because an advocate who negotiates a settlement also helps resolve a dispute. What separates the advocate from the neutral is whether a participant is her client.

The rule's second sentence lists the capacities in which a lawyer may serve, and the list stays open at the end. Service as a third-party neutral "may include service as an arbitrator, a mediator or in such other capacity as will enable the lawyer to assist the parties to resolve the matter."² Conciliators and settlement commissioners fit the same description.³ The open list fits the way the work varies from process to process: whether a neutral serves primarily as a facilitator, an evaluator, or a decisionmaker depends on the process the parties select or a court mandates.⁴ The title therefore settles nothing. A lawyer whose engagement letter says "mediator" but who also represents one of the disputants does not meet the definition. A lawyer with an unfamiliar title who assists two nonclients to resolve their matter does.

The non-client element matters because the neutral stands in a different position from the advocate. A lawyer who serves as an arbitrator, mediator, or conciliator is engaged in professional activity and remains subject to professional standards of ethics, yet she acts in no role that involves representing a client. She assumes a position of general neutrality toward all parties and acts disinterestedly and equitably, either resolving the dispute herself, as an arbitrator does, or facilitating the parties' voluntary resolution, as a mediator or conciliator does.⁵ A participant who was also her client would put her back in the role of client representative, the one role the neutral position excludes. The absence of a client is what keeps the two roles apart.

Lawyers hold no monopoly on the neutral role. Law permits anyone to mediate, and no license is required, although that does not make mediation a free market: much of it is mandated or funded by government.⁶ In some court-connected contexts, however, only lawyers may serve as neutrals or handle certain types of cases. A lawyer-neutral may also answer to court rules and to codes of ethics written for neutrals, such as the Code of Ethics for Arbitration in Commercial Disputes, prepared by a joint committee of the American Bar Association and the American Arbitration Association, and the Model Standards of Conduct for Mediators.⁷

A lawyer can play a narrow role without becoming a neutral. When a lawyer takes a limited scope representation, she still has a client. Under Rule 1.0(e) she must obtain the client's informed consent before limiting the engagement, ensure that the client appreciates the material risks of and reasonably available alternatives to the limitation, and communicate clearly what the representation does and does not provide.⁸ Those duties run to a client, and by definition the neutral has no client among the persons she assists. A lawyer whose engagement is narrow, cooperative, or aimed at settlement is therefore still an advocate if one participant is her client.

The working test is to ask whom the lawyer is helping. If every person in the process is a nonclient and her function is to help them resolve the matter, she is a neutral, whatever she is called. If any participant is her client, she is an advocate, however cooperative the setting. Qualifying under the definition is only the threshold step, and the rule goes on to impose further requirements, taken up in the next section.⁹