Alternative dispute resolution has become a substantial part of the civil justice system. Aside
from representing clients in dispute-resolution processes, lawyers often serve as third-party
neutrals. A third-party neutral is a person, such as a mediator, an arbitrator, a conciliator, or an
evaluator, who assists the parties, represented or unrepresented, in the resolution of a dispute or
in the arrangement of a transaction. Whether a third-party neutral serves primarily as a
facilitator, an evaluator, or a decision maker depends on the particular process that is selected by
the parties or mandated by a court.
The role of a third-party neutral is not unique to lawyers, although, in some court-connected
contexts, only lawyers are allowed to serve in this role or to handle certain types of cases. In
performing this role, the lawyer may be subject to court rules or other law that apply either to
third-party neutrals generally or to lawyers serving as third-party neutrals. Lawyer-neutrals also
may be subject to various codes of ethics, 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, or the Model Standards of Conduct for Mediators jointly
prepared by the American Bar Association, the American Arbitration Association, and the
Society of Professionals in Dispute Resolution.
Unlike nonlawyers who serve as third-party neutrals, lawyers serving in this role may experience
unique problems as a result of differences between the role of a third-party neutral and a lawyer’s
service as a client representative. The potential for confusion is significant when the parties are
unrepresented in the process. Thus, paragraph (b) requires a lawyer-neutral to inform
unrepresented parties that the lawyer is not representing them. For some parties, particularly
parties who frequently use dispute-resolution processes, this information will be sufficient. For
others, particularly those who are using the process for the first time, more information will be
required. Where appropriate, the lawyer should inform unrepresented parties of the important
differences between the lawyer’s role as third-party neutral and a lawyer’s role as a client
representative, including the inapplicability of the attorney-client evidentiary privilege. The
extent of disclosure required under this paragraph will depend on the particular parties involved
and the subject matter of the proceeding, as well as the particular features of the dispute-resolution process selected.
A lawyer who serves as a third-party neutral subsequently may be asked to serve as a lawyer
representing a client in the same matter. The conflicts of interest that arise for both the
individual lawyer and the lawyer’s law firm are addressed in Rule 1.12.
Lawyers who represent clients in alternative dispute resolution are governed by the Michigan
Rules of Professional Conduct. When the dispute-resolution process takes place before a
tribunal, as in binding arbitration, the lawyer’s duty of candor is governed by Rule 3.3.
Otherwise, the lawyer’s duty of candor toward both the third-party neutral and other parties is
governed by Rule 4.1.
RULES 3.1–3.9. ADVOCATE.
