Also known as: third party neutral role · third-party neutral · neutral third party
Written by attorneys · grounded in primary & secondary sources — see below
A role in which a lawyer assists two or more persons who are not clients to reach a resolution of a dispute or other matter between them. Service in the role includes acting as an arbitrator or mediator. A lawyer in the role must inform unrepresented parties that the lawyer does not represent them and must explain the distinction from client representation when a party does not understand the role.
Dustin mediated pricing and delivery disputes between Green Organic and Ash Livestock that produced a revised supply contract. After joining a law firm Dustin agreed to represent Ash Livestock in a suit to enforce the revised contract. Green Organic moved to disqualify Dustin because no party had given written informed consent to the representation.
Field Structures and West Foundation jointly retained Jasper to mediate their multimillion-dollar construction-delay claims. Jasper conducted joint sessions and private caucuses while repeatedly stating that he represented neither side and would not draft pleadings. Jasper never billed either company as a client or filed an appearance in any proceeding.
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Coastal Live and Fair Events retained Clarence to mediate their film-distribution dispute. At the outset of each caucus Clarence stated that he represented neither side and was present only to help them reach a voluntary resolution. When one party appeared confused about the process Clarence explained that he would not advocate for either side or draft binding agreements on their behalf.
A lawyer remains a third-party neutral when the lawyer facilitates communication and negotiation between non-clients without forming an attorney-client relationship. Drafting one-sided contract language after an ex parte caucus and presenting it without disclosure can create the appearance of advocacy for one side. Repeated disclaimers that the lawyer represents neither party and that proposals are non-binding help preserve the neutral role.
A lawyer who participated personally and substantially as a mediator may not represent a party in a substantially related matter unless all parties give informed consent confirmed in writing. The disqualification applies when the later matter involves the same underlying relationship and contested issues discussed during mediation. The rule protects the integrity of the mediation process by preventing a former neutral from switching sides without consent.
A lawyer serving as a third-party neutral must inform unrepresented parties that the lawyer is not representing them. When the lawyer knows or reasonably should know that a party does not understand the role the lawyer must explain the difference between neutral facilitation and client representation. The duty applies even when the parties are sophisticated corporations.