Taking ABA Ethics Opinion 518 for a Test Drive

On October 15, 2025, the ABA issued Formal Opinion 518, an ethics opinion entitled “A Lawyer’s Duties to Avoid Misleading Communications When Acting as a Third-Party Neutral Mediator.”

Opinion 518 examines three points of ethical guidance for lawyer-mediators:

• The duty of lawyer-mediators under ABA Model Rule of Professional Conduct 2.4 to explain their role to unrepresented parties; 
• The lawyer-mediator’s duty to avoid statements that imply the lawyer-mediator is seeking to achieve a party’s best interests; and 
• The lawyer-mediator’s duty to avoid dishonesty, fraud, deceit, and misrepresentation when communicating with parties.

These ABA Ethics Opinions are advisory in nature but nonetheless powerful, as they may be cited or relied upon in civil claims or form the basis of complaints by state or court-based disciplinary boards who are empowered to censure, sanction, or remove mediators from their rosters.[1]

As a way to examine this new ethical guidance, I thought it might be interesting to take Opinion 518 for a “test drive” with some hypothetical scenarios to see how the guidance plays out in mediation practice. 

Scenario 1

Plaintiff has filed a disability discrimination case against his former employer but was unable to find a lawyer.  After the initial hearing before the Court, the case was referred to court-annexed mediation and matched with an experienced mediator on the court’s roster.

The mediation started in a joint session, where the mediator explained that she does not represent either party, cannot give legal advice, and her role as a lawyer-mediator does not allow for attorney-client privilege between her and any party.   

After spending forty-five minutes with the defendant in caucus, the mediator meets with the Plaintiff individually and tells him that the defendant doesn’t think he has a strong case and is planning to file a motion to dismiss.  Then she says,

“Look, I can’t give you legal advice, and I’m not your lawyer, and only YOU can decide what is best for you.  But what I can tell you is that based on my 35 years on the bench, you’re probably going to lose this motion before the Judge.  The Defendants put $10,000 on the table, which they consider nuisance value, to settle this case – so let me know what you want to do, it’s totally up to you.”

Explaining The Mediator’s Role

Did the mediator’s statement to the Plaintiff live up to the ethical guidance?

Section I of Opinion 518 discusses the obligation of the lawyer-mediator to distinguish their role as a lawyer-neutral from that of a lawyer-advocate to unrepresented parties in accordance with Model Rule 2.4.  518 expands upon the Model Rule 2.4 obligation slightly to suggest that unless the parties are sophisticated consumers of mediation, the lawyer-mediator should “afford [parties] an opportunity to discuss” their role as mediator in contrast to that of a legal representative.  In the scenario above, the mediator clearly stated that she was not the Plaintiff’s lawyer and disclaimed her ability to give legal advice.  However, to comply with 518, the mediator might have added, “Do you have any questions about my role as a mediator or how it is different from the role of attorney?” 

518 also recommends lawyer-mediators be “vigilant” to avoid the impression that they offer parties any protections of the client-lawyer relationship, namely, attorney-client evidentiary privilege. In this scenario, the mediator mentioned in her opening statement that attorney-client privilege does not apply, however because she is working with a self-represented party, 518 implies that she might want to reiterate in caucus the difference between attorney-client privilege and mediation confidentiality and discuss it with the plaintiff.  The mediator might say something like, “Attorney-client privilege offers complete confidentiality to communications between lawyers and their clients, with very few exceptions.[2]  But I am not your lawyer today, and mediation confidentiality applies.”  Mediation confidentiality is jurisdiction specific,[3] so in her explanation the mediator should be clear about the limits of mediation confidentiality in the particular setting in which this mediation is taking place.[4]

Lawyer-Mediator Avoiding Statements That Imply Mediator is Not Neutral or Seeking to Achieve a Party’s Best Interests

518 instructs lawyer-mediators to “avoid misleading the parties about the lawyer-mediator’s role” and any statements or actions that imply the mediator is acting to achieve a party’s best interest or “that a proposed settlement is in a party’s best interest.”[5]   The Opinion goes on to state that the lawyer-mediator may provide truthful information that helps parties “to conclude for themselves, or makes it obvious to them, whether a proposed resolution is in their best interest, given their objectives.”[6]  The opinion also says that lawyer-mediators may provide legal information and offer predictive views of how a tribunal would resolve a legal or factual question.[7]

In the scenario above, the mediator did disclaim the role of lawyer and stated that she could not give legal advice.  She reinforced this by saying, “only YOU can decide what is best for you.”  But she also gave a clear opinion that could easily lead an unrepresented party to infer their best choice is to take the $10,000.  Under 518, this type of evaluation is likely permissible. 518 distinguishes a mediator offering a prediction, from a mediator stating or implying that a party should settle because of that prediction. Because the mediator did not say the magic words, “and so you should settle this case” the mediator’s statement is likely acceptable under Opinion 518, though the risk increases when the mediator’s authority and predictive confidence might be reasonably understood as recommending settlement.[8]

But, what if the self-represented party says to the mediator, “Well Ms. Mediator, should I take the $10,000?”  Under 518, answering this question for the Plaintiff would cross the line, especially if the mediator said, “it is in your best interests to take the deal.”  But if the mediator only responds with, “Well, if I thought I was going to lose...”  Would that count as advice? Or what if the mediator says, “I think you can tell what I think based on what I’ve shared so far.”  These responses are suggestive, but are they crossing the line into legal advice or are they just truthful statements making it obvious that a proposed resolution is in a party’s best interest?[9] What if the mediator says, “Now that I’ve told you what I think the judge will do here, what do you think is your best choice?”  This ambiguity regarding what constitutes legal advice may create a risk for mediators that provide predictive analysis or legal evaluations.

518’s statement that a lawyer-mediator may offer predictive views of how a tribunal will rule, is a departure from other ethical guidance for lawyer-mediators. The Model Rule for the Lawyer as Third-Party Neutral developed by the CPR-Georgetown Commission on Ethics and Standards in ADR[10] distinguishes evaluative from facilitative mediation and suggests that a party should give informed consent before an evaluation is given.[11] The AAA/ABA/ACR Model Standards of Conduct for Mediators, which is written for both lawyer and non-lawyer mediators also cautions mediators to avoid mixing the role of mediator with other roles.[12] At the state level, the Virginia State Bar Rules of Professional Conduct offers nuanced guidance on the use of evaluation by lawyer-mediators and restricts “the use of evaluative techniques by the lawyer-mediator to situations where the parties have given their informed consent…” [13] 

Despite what 518 says, mediators should check their local jurisdictions prior to engaging in an evaluation or predicting outcomes.  It is still best practice to make sure that parties, especially unrepresented parties, understand and are aware of the type of mediation service you offer and whether you intend to evaluate their case.[14]

The Lawyer-Mediator’s Duty to Avoid Dishonesty, Fraud, Deceit, and Misrepresentation When Communicating with Parties

The final section of 518 discusses the special trust afforded lawyer-mediators by counsel and parties in mediation.[15]  Because of this unique role, 518 bars lawyer-mediators from engaging in negotiation “puffing” or exaggeration that would be permissible for lawyers representing clients under Rule 4.1.  This issue arises most often in caucused mediation when the mediator relays information between rooms. 

Scenario 2

The Plaintiff says, “Thanks for your feedback about my case, Ms. Mediator.  Please go back and tell them I’ll take $50,000 and no less.  But look, I’m flexible and I’ll be reasonable if I have to.  I just want to see what is possible, do you think that is a good idea?”

Under 518 the mediator could convey the $50,000 offer but may not say “the Plaintiff isn’t willing to take less.”  This is because the Plaintiff told the mediator they are flexible.  The mediator indicating otherwise to the defendant would lead the mediator to relay what the mediator knows to be false.  The mediator may, however, relay information from one room to another if the lawyer-mediator makes clear the origin of the statements. Under this interpretation, this mediator could say, “The Plaintiff asked me to tell you he will accept $50,000 and no less.”  Yet, even when accurately attributing statements, mediators should consider whether conveying only part of a party’s message could reasonably create a misleading impression.

An important function of a mediator is to build trust and rapport with parties and counsel so the mediator can assist the parties to communicate with one another and engage in effective settlement negotiations.  If parties or attorneys (as they often do) share information about their negotiation positions, seek the mediator’s guidance regarding their negotiation strategy, or enlist the mediator to convey a party’s position as the mediator’s own to avoid reactive devaluation,[16] the mediator’s role may become compromised in light of 518’s guidance.[17]

In Scenario 2, the mediator would have to tread carefully when answering the Plaintiff’s question of whether demanding $50,000 is a good idea.  Under 518, the mediator could tell the Plaintiff what parties have done in response to similar moves, but must reiterate that they cannot advise the Plaintiff what to do and instruct them to seek legal advice if they would like further guidance. 

The issues regarding candor in Section III of Opinion 518 are specific to caucused mediation, which has increased in popularity in recent years.[18]  An optimistic note raised by mediation ethics expert Professor Ellen Waldman is that perhaps the higher standard of care ascribed to mediators will lead to an increased use of joint sessions so mediators can avoid the pitfalls of being perceived as mischaracterizing or endorsing a party’s position or inadvertently conveying false information from one caucus room to another.[19]  

The following is a brief checklist designed to help mediators comply with ABA Ethics Opinion 518:

ABA Ethics Opinion 518 Mediator Checklist

• Avoid Role Confusion
  • Distinguish the role of lawyer-mediator from the role of advocate and afford opportunity to discuss this with parties.
  • Remain vigilant with unrepresented parties and ensure they understand your role as a mediator.
• Clarify Mediation Confidentiality
  • Explain the difference between attorney-client privilege and mediation confidentiality and afford the opportunity to discuss this with the parties.
•  Do Not Provide Legal Advice
  • Inform parties that you cannot give legal advice and that, in your role as mediator, you cannot suggest that any settlement offers you discuss are in their best interest.
  • Check local court rules and State ethics rules prior to offering predictions or legal evaluations. 
  • Although not required by 518, it is best practice prior to evaluating or predicting a case outcome to discuss your role as mediator with both parties and obtain informed consent to evaluate the case or provide predictions. 
  • If you are working with an unrepresented party and they consent to an evaluation, be explicit that they can speak with a lawyer or seek legal advice at any time during the mediation.
• Do Not Knowingly Convey or Endorse False Statements
  • When conveying information from one caucus room to another, do not convey false bottom lines, statements the mediator knows to be “puffed” or exaggerated, or add “strategic gloss”[20] to statements made by parties to encourage settlement.
  • Do not convey messages that could reasonably create a misleading impression to any party.
  • When relaying messages, give clear attribution to the source of the message.
  • Encourage the use of joint sessions and direct communication among the parties to promote transparency and avoid the risk of misconstruing information. 

Lawyer-mediators should be sure to review their own jurisdiction’s Rules of Professional Conduct to ensure compliance with Opinion 518. The opinions expressed in this article are the author’s own and are offered to promote thoughtful discussion and reflection. Readers should not rely on this article alone and should consult applicable rules, ethics opinions, and program requirements.