Avoiding Misleading Mediator Communications

The American Bar Association’s Standing Committee on Ethics and Professional Responsibility recently reinforced longstanding principles of mediator neutrality and transparency with an ethics opinion focused on two themes:  (i) a lawyer-mediator should never tell a party – particularly an unrepresented litigant – that the neutral represents that party, and (ii) that neutral should never make (or even convey) a statement during the course of the mediation knowing it to be false, incomplete, or at least exaggerated.

These critical tenets of mediation are hopefully non-controversial to accomplished and well-trained mediators (and practitioners), and they are to a large extent already embodied in the ABA’s Model Rules of Professional Conduct, court ADR protocols, and mediating convention.  But the ABA Committee concluded that these issues warranted a formal opinion to remind neutrals who are lawyers as to the ethical bounds of their conduct, particularly when dealing with less seasoned mediation participants (and in particular pro se parties), and to sharpen the higher expectations of accuracy and candor for mediators as compared to advocates who are accorded “immaterial” liberties.  The product is Opinion 518, issued on October 15, 2025, and entitled “A Lawyer’s Duties to Avoid Misleading Communications When Acting as a Third-Party Neutral Mediator.”

Long Established Principles

Notably, the ABA Committee’s new gloss comes in the form of an opinion rather than additional model rules, presumably because the underlying principles are well established and the subject of existing rules.  ABA Model Rule 2.4 (Lawyer Serving as Third-Party Neutral) already requires a lawyer acting as a third-party neutral to inform unrepresented parties that the lawyer-mediator does not represent them, as well as to explain the difference between the neutral role and the role of a lawyer representing a client when the lawyer knows or reasonably should know that the parties do not understand the mediation process.[1]  Similarly, mediation rules typically make clear that the mediator is not representing any of the parties.[2]  And while there is no Model Rule addressing mediator dishonesty or liberties with the facts or law per se, Rule 8.4(c) prohibits all lawyers from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.

So why the need for a formal ethics opinion explicating these issues?  One commentator has opined that the mediation community has become inundated with neutrals – including many former judges and practitioners – who are not properly trained for the role.  The result, in many cases, according to that commentator, has been a departure from neutrality in which the mediator tips the playing field by offering gratuitous views on the merits or valuation, or impermissibly provides advice as to a party’s “best interests” that could even imply the formation of an attorney/client relationship.[3]  While seasoned litigants and counsel may be unaffected by such arguable overreaching, others less familiar with the mediation process – and in particular pro se litigants – may be more likely to embrace the mediator’s views and guidance and even conclude that the mediator is representing that party’s interests.

As Opinion 518 underscores, while the degree of admonition depends on context, the mediator’s need to impress and explain the neutral and non-representative role increases when the parties and their counsel lack familiarity with the mediation process, especially where a litigant is unrepresented. 

Beyond mandating a clear explanation that the mediator’s role is non-representative, the opinion goes on to underscore that a mediator may not take sides, and certainly should not suggest the neutral has a party’s best interests in mind.  Moreover, the mediator must be scrupulously accurate in relaying positions and communications and may not engage in “puffery” and other forms of “immaterial” posturing permitted for counsel for the litigants.   While a party’s counsel can represent that it has made its “best and final” offer, the mediator may not do more than faithfully pass along that message, and certainly may not advise whether the proposal is in the other side’s best interests. 

The opinion recognizes that a mediator may be asked to express views on how the court or tribunal may rule, which is fair game.  But assuming the mediator is willing to do so – and presumably any view will be couched with plenty of uncertainty – the opinion admonishes that the mediator go no further by exhorting a party to settle in light of that view.

Opinion 518 accordingly stands as a reminder to mediators of their neutrality, including expressly admonishing the parties that the mediator does not represent them and the overarching requirement to communicate honestly and avoid any perceived falsehood, including any exaggeration or concealment.

Mediator’s Proposals

So, what impact does Opinion 518 have on so-called “mediator’s proposals,” the mediator’s device – often as a last resort – to bridge the parties’ remaining gap?  According to a leading mediator, such proposals are no longer viable under the neutrality mandate of Opinion 518 unless they strike the precise mid-point of the gap.  Otherwise, the reasoning goes, the mediator has abandoned neutrality by picking a number closer to one side.[4] 

But that syllogism assumes that only the mid-point is the “neutral” and “fair” outcome.  For one thing, the mediator has no way of knowing how each side truly values the case, and where each seeks a resolution vis-à-vis the mid-point, which itself often changes dramatically as the gap closes.  If vetted and communicated properly, the mediator’s proposal makes no comment on its fairness to each side, but merely reflects the mediator’s perception of a number that both sides may accept based on their own analysis and rationale.  An effective mediator gleans that the proposed level is viable only through the process, many ex parte discussions, and a good deal of body language.

Correlatively, what a mediator may not do is offer a view that a proposal is in a party’s “best interests,” or suggest that it represents the bottom line unless the other side has authorized that statement, and it is recited precisely without opining whether it is to be believed (and perhaps expressly disclaiming any view on its credibility).  And typically, any proposal will be “double blind,” meaning that no party will learn how others responded unless all accept the proposal, preserving all negotiating positions preceding the proposal.[5]   

In the end, a proposal is no more or less neutral when not at the precise mid-point, so long as the mediator clearly expresses the proposal in terms of a realistic resolution both sides may find acceptable for their own respective reasons.  A dispute ultimately settles because each side can rationalize the result, not because they agree on the rationale.

 For an insightful discussion of mediator’s proposals, including the impact of Opinion 518, see https://www.lexology.com/library/detail.aspx?g=aeb96e85-fa80-4e47-8b95-89ea1b037ca7&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=American+Arbitration+Association+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2026-03-02&utm_term= [6]

Non-Lawyer Mediators

Not every mediator is a lawyer subject to Model Rules and ABA Ethics Opinions.   Some of the finest governmental envoys who resolve international conflicts hold no law degree but have the gravitas and people skills to strike a deal.  Many local communities offer dispute resolution services spearheaded by paralegals or other non-lawyer professionals.

The principles and precepts of Opinion 518 transcend legal ethics, however, and anyone who offers mediation services would be well advised to read it closely.  It should be part of any mediation training curriculum regardless of the background or legal training of the audience.  Indeed, Opinion 518 itself draws support from the Model Standards of Conduct applicable to all mediators – not just lawyer-mediators – promulgated in 2005 collectively by the American Arbitration Association, the American Bar Association and the Association for Conflict Resolution, including its guidance on self-determination (Standard I), impartiality (Standard II) and the mediator’s non-representative and neutral role (Standard VI(A)(5)).

Best Practices

With proper orientation, pre-mediation “triage,”7 and precise communication, the stage will be set to avoid any confusion about the mediator’s role, neutrality, and accurate messaging.  But mediators should pay particular attention to some “best practices” at the core of Opinion 518. 8

Non-Representation.  Hopefully, the applicable court ADR protocols make clear that the mediator is a neutral who does not represent either side.  But the mediator should reinforce that concept at the outset through explicit language in a mediation agreement, and in introductory remarks, which should be expanded in the event of an unsophisticated party or pro se participant.  Should the issue of representation present itself nonetheless during the course of a mediation, the neutral should respond clearly and forcefully, pointing back to the protocols and agreement, and dispelling any suggestion that the mediator represents any party or will look out for the party’s best interests. 

Communicating With Less Sophisticated Litigants.  When making extra efforts to explain process or substance to ensure that less sophisticated litigants (including pro se parties) grasp what is happening, the mediator should reiterate that the added detail and explanations are intended only to ensure complete understanding and should not be construed as the mediator providing representation or offering advice.

Thoughtful and Cautious Accuracy.  Whether in conveying messages between the parties or answering questions about that information, the mediator should carefully consider how to communicate the messaging and responses accurately.  In that respect, there may be facts or positions the mediator is not authorized to share, in which case the mediator must note those confidentiality constraints rather than resorting to concealment.

Confidentiality.  Opinion 518 appropriately distinguishes between confidentiality arising from mediation rules/protocols versus confidentiality inherent in the attorney-client relationship.  To avoid the perception that the lawyer-mediator is respecting confidences due to representation of the parties, mediators should clearly identify that the source of confidentiality is the mediation process and not any attorney-client relationship.

Looping.  A careful mediator can avoid conveying inaccurate messages even inadvertently by taking accurate notes and “looping” – i.e., reconfirming the message and recording its substance – before conveying it to the other side.  The mediator should then record precisely the message that was conveyed. 

Joint Sessions.  Mediators certainly have their respective philosophies about the constructiveness of joint sessions, particularly where the parties’ relationship has become acrimonious.9 Obviously, however, there is little risk of a mediator lapsing from Opinion 518’s admonition against miscommunicating (much less exaggerating) if a message is delivered by the party directly in a joint session, creating an added incentive for keeping the parties together. 

Dealing With “Hard” Line Positions.  Particularly if a party directs the mediator to convey a non-credible or hardline position – e.g., an offer is “best and final” or “we will never settle in “X” figures or close to the “mid-point” – the mediator should first suggest that the party will lose credibility by communicating a hard position that it later disavows.  But if the party persists, the mediator is duty-bound to communicate the position precisely without offering any view on whether it is sincere.

Mediator’s Proposals.  Some mediators eschew making proposals altogether.  Others use them only as a last resort, and even then, only after doing enough ex parte groundwork to be satisfied that the proposal stands a fighting chance. 

To avoid tripping over Opinion 518, any proposal should optimally be made in writing using careful language that (i) underscores that it reflects only a level where the mediator believes the matter might settle and not the mediator’s substantive view of the merits or value of the dispute; and (ii) stresses that the parties should evaluate the proposal with their counsel, taking into consideration any factors and advice they deem appropriate.  If the proposal is made orally, it should follow a written script to avoid any question that the same surrounding message was communicated.  

Conclusion

The ABA Committee’s opinion reinforces that mediators are special creatures governed by neutral standards inapplicable to lawyer advocates.  Hopefully, seasoned mediators do not need to be reminded of their ethical obligations and follow protocols to avoid the pitfalls addressed in the opinion.  But all mediators – especially less accomplished ones – should read Opinion 518 on an annual basis, and it should be part of annual CLE curricula and ongoing ethical self-assessment.

Author Biography

Norman Feit was formerly global head of Litigation and Regulatory Proceedings at Goldman Sachs.  He previously spent a decade practicing litigation with Sullivan & Cromwell after a Second Circuit clerkship.  He now teaches as an Adjunct Professor at Fordham Law School and provides consulting and advisory services, including as a neutral, at Feit Services LLC.  He is a member of the AAA Commercial & Consumer Arbitration Panels, the AAA Mediation Roster, and the AAA Securities Advisory Committee.