The State Bar of California has taken the position that under its Rule 2.30 an attorney (which would include those retired judges still holding Bar membership) serving as a private arbitrator is engaged in the practice of law and therefore must be on active rather than inactive status. This is because under Rule 2.30 the Bar has determined that an inactive attorney serving as a private arbitrator would be engaged in the unauthorized practice of law since that rule prohibits an inactive member from "occupying a position wherein he or she is called upon in any capacity to give legal advice or counsel or examine the law or pass upon the legal effect of any act, document or law."
On the other hand, using the same line of reasoning, the State Bar has concluded that while acting as a private arbitrator requires active status, the private practice of mediation is not the practice of law. According to the Bar, this is because it "does not consider mediation as the practice of law" since "mediation does not include giving legal counsel or passing on
the legal effect of any law." This permits the attorney engaged in the private practice of mediation to continue on inactive status, and allows lay practitioners of this art to compete with them.
At least two problem areas immediately come to mind when the private mediator transitions to the role of arbitrator as per the request of the parties (whether at the same or a subsequent session), or intercedes at the point of reaching a mediation agreement and either drafts or contributes to the drafting of the settlement document. In the first case, while it seems that a lay private mediator would be prohibited from becoming the arbitrator (because of the Rule 2.30 definition of the unauthorized practice of law) what occurs when the private attorney-mediator who is on inactive status does so? And in the second situation, what is the interpretation when the private mediator (attorney on inactive status or non-lawyer) becomes part of the settlement agreement drafting process?
In the first case, the State Bar has determined that when the private attorney- mediator on inactive status assumes the role of arbitrator in transition from that of a mediator, he or she must be back on active status at that point because to do otherwise would permit the unauthorized practice of law. So, for example, it is particularly important to keep this in mind
when in reaching agreement the parties and their counsel request that the mediator agree to act as arbitrator regarding any future dispute under or concerning the terns of the settlement. While the private lay mediator will not be able to agree to do so, the private attorney-mediator on inactive status with the State Bar must prepare to return to active membership prior to undertaking the additional neutral role.
In the second of the problem areas, we encounter more difficulty because on the one hand private mediators whether attorney or non-attorney must refrain from engaging in the unauthorized practice of law as defined by Rule 2.30, but on the other they need to make sure that the mediation is successfully concluded and memorialized by an appropriate document that clearly sets forth the agreement of the parties. Whether the mediator is "occupying a position wherein he or she is called upon in any capacity to give legal advice or counsel or examine the law or pass upon the legal effect of any
act, document or law," and therefore required to be enrolled as an active member of the State Bar, will be determined by the extent of the mediator's participation in the agreement drafting stage.
At this point of the mediation process, while not actually engaging in drafting, is the careful and efficient mediator required to make sure that the lawyers for the parties fully ensure inclusion of wording that provides for a complete, binding and enforceable agreement, or should the mediator be able to rely on the lawyers to achieve this since they are the practitioners of the law under these circumstances? There is a difference of opinion among private mediators.
Some say that by the very wording of Rule 2.30 the private mediator's sole responsibility is to facilitate the parties coming to their agreement and once accomplished the obligation to ensure later enforceability of the settlement through appropriate legal drafting is the responsibility of the lawyers and not the mediator. The conclusion is that the effective mediator has accomplished what he or she was retained to do once the lawyers commence the agreement drafting process and has no responsibility for what follows. Anything more would violate Rule 2.30. Others argue that a competent mediator must be ready to coach the lawyers even at this stage so that they make sure that the agreement reached by the parties is accurate, binding and capable of subsequent enforcement if that is what the parties desire. This would require that the mediator, while not actually engaging in the agreement drafting process, nevertheless review the document prior to execution to make sure that the lawyers for the parties have fully and accurately represented their clients. So that when the lawyers for the parties, after having drafted the settlement agreement in the presence of the mediator, inquire whether the mediator would like to take a look at it before execution to make sure that it is fully inclusive and representative of the parties' agreement, the mediator is obligated to do so. And further, this obligation is present whether or not the lawyers request the intervention of the mediator at this stage.
It would seem that the best solution is for the mediator (lawyer or lay) to have a prepared checklist of items that the lawyers might want to consider in drafting the agreement. The checklist would be distributed in advance of the mediation so that counsel and parties could consider if they want to include any of those in the drafting process, exonerating the mediator from entering the area of unauthorized practice of law under Rule 2.30
A. Marco Turk is professor and director of the Negotiation, Conflict Resolution, and Peacebuilding Program at Cal State University Dominguez Hills, a mediator for the California Court of Appeal (2nd District), and a member of ARC. His column appears here on the first and third Fridays. He can be reached at email@example.com.