The Florida Bar

Florida Bar Journal

Ethics in Negotiation and Mediation for the Florida Attorney

Featured Article

Art by Joe McFadden Lawyers face several sets of ethical obligations when engaged in negotiations on behalf of clients1 & #x2014; the obligation of competence,2 the obligation to be truthful,3 the obligation to be a zealous advocate,4 the obligation to be fair,5 and the obligation to keep the client informed,6 among others. In a litigation setting, the lawyer may also have the obligation to inform the client of economic cost-saving methods of dispute resolution.7 In mediation,8 there are numerous potential ethical obligations. For the lawyer-advocate, mediation presents not only obligations to the client, but also to the other side and mediator.9 the lawyer-mediator must consider the disclosure and confidentiality obligations10 based on The Florida Bar ethics rules as well as the mediator rules of ethics and conduct.

The lines of ethical conduct for lawyers in negotiation and mediation are not always clear. The Rules Regulating The Florida Bar, Ch. 4: Florida Rules of Professional Conduct (FRPC), effective since 1986, were based upon the ABA Model Rules of Professional Conduct and subsequently amended to reflect much of the ABA’s “2000 Rules,” approved by the ABA House of Delegates in 2002.11 In addressing ethical issues in negotiation and mediation, the authors draw not only from Florida’s current Rules of Professional Conduct but also look for guidance from the ABA’s 2000 Rules.

Ethical Obligations of Lawyers
The Obligation of Competence
The first ethical obligation of counsel in representing clients, in all contexts, not just in negotiation and mediation, is Rule 4-1.1, which provides an obligation of competence. This rule is unchanged in the 2000 Rules. It reads in both versions:

Rule 4-1.1 Competence
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Rule 4-1.1 is important to ethics in negotiation and mediation because the Florida Rules of Civil Procedure 1.700 provide that the presiding judge may enter an order referring all or any part of a contested civil matter to mediation or arbitration. In such matters, a lawyer cannot adequately represent the client in mediation or arbitration, without “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

What is the level of competence envisioned in Rule 1.700? Is it community standard? If so, the level of lawyer competence in ADR may be quite low. The comment to the rule leaves lawyers to answer these questions for themselves, or to ask advice of other lawyers or nonlegal experts.

The Obligation to be Truthful
FRPC 4-4.1, Truthfulness in Statements to Others, sets forth a lawyer’s ethical obligation of truthfulness in negotiations, including truthfulness in a mediation session:

Rule 4-4.1 Truthfulness in Statements to Others

In the course of representing a client a lawyer shall not knowingly:

(a) make a false statement of material fact or law to a third person; or

(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 4-1.6.

On its face, the language of FRPC 4-4.1 appears to be quite clear and unambiguous by requiring no lying or shading of the truth in negotiations. Indeed, the lawyer’s obligation to be truthful in negotiating with opponents and counsel is on the same level as that applicable in court. The FRPC 4-3.3 reads:

Rule 4-3.3 Candor Toward the Tribunal
(a) A lawyer shall not knowingly:

(1) make a false statement of material fact or law to a tribunal;

(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client. . . .

Similarity between FRPC 4-4.1 and FRPC 4-3.3 both require that in addressing a court or tribunal, a lawyer shall not lie about material facts, and in negotiations or mediations with an opposing party, the lawyer is held to the same level as if making representations to a court.

But the comment to FRPC 4-4.1 takes away what the rule seems to give. The official comment indicates that Rule 4-4.1 is not as absolute as it appears:

This [r]ule refers to statements of fact. Whether a particular statement should be regarded as one of fact can depend on the circumstances. Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact. Estimates of price or value … and a party’s intentions as to an acceptable settlement of a claim are ordinarily in this category, and so is the existence of an undisclosed principal….

Misrepresentations or outright lies about value, your bottom line, and even whom you really represent in the negotiations may be acceptable.

Indeed, anything that falls under the umbrella of “accepted conventions in negotiation” maybe acceptable ethical conduct in negotiations. However, the parameters of accepted negotiation conventions are uncertain. Such conventions may be quite different in rural northwest Florida from those in Miami. They may also be different from one attorney to the next. Thus, the adage, “Caveat emptor, caveat venditor, and caveat negotiator — everyone may be lying and everyone should beware,”12 must be kept in mind throughout the negotiation process.

While Florida’s Professional Ethics Committee does not always follow ABA ethics opinions, this conclusion is reflected in the ABA’s Standing Committee on Ethics Formal Opinion 06-439, which expressed that a lawyer has greater leeway in misrepresenting a client’s position in negotiations or in a mediation session than the lawyer has in addressing a tribunal. “It is not unusual in a negotiation for a party, directly or through counsel, to make a statement in the course of communicating its position that is less than entirely forthcoming.”13 And, “[a] party in negotiation also might exaggerate or emphasize strengths, and minimize or deemphasize weaknesses, of its factual or legal position.”14 But, “[a] deliberate misrepresentation or lie to a judge in pretrial negotiations would be improper ….”15 The opinion also clarifies that Rule 4.1 is applicable in mediation, rather than Rule 3.3, and that the Rule 8.4, Misconduct, standard is not more demanding of attorneys in negotiations than is Rule 4.1.16

The Obligation to be a Zealous Advocate
“Zealous advocacy” is a hallmark of assertive and aggressive conduct by lawyers in advocating for a client in negotiations. Although the phrase, “represent a client zealously within the bounds of the law,”17 is no longer contained in the 2000 Rules, the catch phrase “zealous advocacy,” remains in both the preamble and in some comments to both the 2000 Rules and the FRPC:

Preamble: A Lawyer’s Responsibilities
As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.. . .

A lawyer’s responsibilities as a representative of clients, an officer of the legal system and a public citizen are usually harmonious. Thus, when an opposing party is well represented, a lawyer can be a zealous advocate on behalf of a client and at the same time assume that justice is being done. . . . 18

Additionally, the preambles in both the 2000 Rules and the FRPC, contain statements that, “[a]s negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others.”19 Furthermore, the Florida preamble states:

Within the framework of these rules, however, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the rules. These principles include the lawyer’s obligation to [“zealously” omitted in Florida’s preamble] protect and pursue a client’s legitimate interests, with the bounds of the law, while maintaining a professional, courteous, and civil attitude toward all persons involved in the legal system.20

The parenthetical language is in the ABA’s 2000 Rules version, but is not contained in Florida’s preamble. Query also whether this deleted language really assists the lawyer in determining the limits of ethical, zealous advocacy versus the obligations to be truthful in negotiations. While the preamble admonishes lawyers to be civil, professional, and courteous, it says nothing about being truthful. Perhaps lying in negotiation or mediation with a smile is permitted but lying with a sneer is not.

The Limits of Puffing and Bluffing in Negotiations
The line between knowing falsehoods under Rule 4-4.1 and puffing and bluffing is not always clear. And, who decides? Mellissa Nelken says that deceptive techniques are commonplace in distributive bargaining21 and that “such tactics are fundamental to negotiation itself and therefore cannot be considered unethical when used by lawyers.”22 Gerald Wetlaufer stated the matter succinctly:23 “[O]ne who lies in negotiations is in a position to capture almost all of the benefits of lying while suffering only a small portion of the costs …. [I]n the language of the economists, this state of affairs will lead, almost automatically, to an overproduction of lies.”

Others commentators, however, would impose higher standards. Judge Rubin would argue that attorneys are not required to do all that their clients might demand in negotiations, and would require that, “The lawyer must act honestly and in good faith.”24

What are the limits to puffing and bluffing? What are the limits to how far an attorney can go in the name of zealous advocacy? The end result of both negotiation and mediation is often a settlement agreement. Because a settlement agreement is a contract, it is subject to challenge in the same manner as any other contract. Fraud and misrepresentation, therefore, may negate the settlement agreement. But, if the lies that were told were mere puffery and considered within the bounds of accepted conventions in negotiation, then the settlement agreement should stand.25

FRPC 4-4.1 and the comments thereunder may let the lawyer off the hook ethically. Does the rule and comments shield a settlement agreement from challenge on fraudulent inducement grounds? Rule 4-4.1 may not automatically protect the contract from challenge if the lawyer’s lies are construed, for disciplinary purposes, as within “generally accepted conventions in negotiation,” but that is probably the practical effect. If the lawyer’s comments, though outright lies, fall under Rule 4-4.1’s generally accepted conventions, then the victim of the lies will be hard-pressed to say that reliance on the lies was reasonable.26

Furthermore, in Florida, there are statutory exceptions to the general rule that all communications in mediation are confidential. These exceptions ensure ethical conduct in mediation as well as negotiation. The Florida Mediation Confidentiality and Privilege Act provides that all communications made in or relating to the mediation session are confidential (with a few enumerated exceptions) and may not be used in subsequent proceedings:

§44.405, Fla. Stat. (2004). Confidentiality; Privilege; Exceptions
(1) Except as provided in this section, all mediation communication shall be confidential. A mediation participant shall not disclose a mediation communication to a person other than another mediation participant or a participant’s counsel…

(2) A mediation party has a privilege to refuse to testify and to prevent any other person from testifying in a subsequent proceeding regarding mediation communications….

***

(4)(a) Notwithstanding subsections (1) and (2), there is no confidentiality or privilege attached to a signed written agreement reached during a mediation, unless the parties agree otherwise, or for any mediation communication:

(1) For which confidentiality or privilege against disclosure has been waived by all parties;

(2) That is willfully used to plan a crime, commit or attempt to commit a crime, conceal ongoing criminal activity, or threaten violence;

(3) That requires a mandatory report pursuant to chapter 39…;

(4) Offered to report, prove, or disprove professional malpractice occurring during the mediation, solely for the purpose of the professional malpractice proceeding;

(5) Offered for the limited purpose of establishing or refuting legally recognized grounds for voiding or reforming a settlement agreement reached during a mediation; or

(6) Offered to report, prove, or disprove professional misconduct occurring during the mediation, solely for the internal use of the body conducting the investigation of the conduct.

Thus, if a lawyer and client mislead and defraud an opposing party in mediation, the opposing party may argue that the agreement is void or should be reformed, if the victimized party later learns of the fraud. Of greater significance is the language in F.S. §44.405(4)(a)(6) (2004) providing for the introduction of evidence that the attorney participated in the fraud in a subsequent investigation of attorney misconduct by The Florida Bar.

The Obligation to Keep the Client Informed
In negotiations, as elsewhere in representing a client, the attorney has an obligation to keep the client informed. The FRPC 4-1.4 reads:

Rule 4-1.4 Communication
(a) A lawyer shall:

(1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in terminology, is required by these Rules;

(2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished;

(3) keep the client reasonably informed about the status of the matter;

(4) promptly comply with reasonable requests for information; and

(5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows or reasonably should know that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

FRPC 4-1.4(a)(1) requires the lawyer to “promptly inform” the client, and FRPC 4-1.4(a)(3) requires the lawyer to “keep the client reasonably informed….”FRPC 4-1.4(a)(5) requires the lawyer to “consult with the client,” while FRPC 4-1.4(b) says, “[a] lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions ….” In the context of settlement negotiations, FRPC 4-1.2: Objectives and Scope of Representation, 4-1.2(a) adds, “[a] lawyer shall abide by a client’s decision whether to settle a matter.”

These rules require the attorney to keep the client apprised of settlement offers and to abide by the client’s desires to settle. In practice, however, the lawyer may control the flow of information to the client in the negotiation and settlement process. To reduce a client’s expectations, an attorney might manipulate information provided to the client, or engage a hard-ball mediator with a reputation for pressuring parties to settle. Perhaps the attorney believes the client’s expectations are unrealistic, or perhaps the attorney’s cost-benefit analysis indicates it is not in the attorney’s interest to try the case, even though the client would rather go to trial.

Either way, there is an ethical dilemma. The attorney could manipulate the client by withholding or sanitizing information to foster settlement on terms that the attorney believes reasonable. The attorney was hired for his or her experience and expertise, and that may include the attorney’s experience and expertise in valuing the case for settlement. The attorney may well be acting in the client’s interest in lowering the client’s expectations. Withholding information and manipulating information can cloud the ethics of negotiation. The comments to FRPC 4-1.4 do not extend the same leeway to lawyers in communicating with their clients as are extended by the comments to FRPC 4-4.127 regarding truthfulness in communicating with others.

Ethical Obligations of Lawyer-Mediators
The Lawyer as a Neutral in Dispute Resolution
The lawyer-mediator must follow the ethical rules and standards of a mediator,28 and additionally, the ethical obligations of lawyers, even though the lawyer-mediator is not acting as an advocate.29 The following discussion focuses primarily on those additional ethical obligations imposed on lawyers acting as mediators. Because the lawyer-mediator is not representing (or is not supposed to be representing) a client in the mediation, many of the ethical obligations of the lawyer to the client are not impacted. The lawyer-mediator does, however, have to take precautions to ensure that he or she does not end up representing one side, the other, or both in the course of the mediation. Rule 4-2.4 in the FRPC helps clarify the role of the lawyer-mediator.

FRPC 4-2.4 provides that the lawyer is not representing the parties when acting as a third-party neutral to assist in dispute resolution, but requires the lawyer-mediator to inform unrepresented parties that he or she is not representing them and to explain the mediator’s role.

Rule 4-2.4 Lawyer Serving as Third-Party Neutral
(a) A lawyer serves as a third-party neutral when the lawyer assists two or more persons who are not clients of the lawyer to reach a resolution of a dispute or other matter that has arisen between them. Service as a third-party neutral may include service as an arbitrator, a mediator or in such other capacity as will enable the lawyer to assist the parties to resolve the matter.

(b) A lawyer serving as a third-party neutral shall 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 lawyer’s role in the matter, the lawyer shall explain the difference between the lawyer’s role as a third-party neutral and a lawyer’s role as one who represents a client.

Informing the disputants that the lawyer-mediator is not their attorney does not resolve all potential conflict issues that may arise in the course of conducting the mediation. The lawyer-mediator still should avoid giving legal advice to one party or the other, as giving advice may give a party an impression of partiality or a misimpression regarding representation. If a disputant believes that the lawyer-mediator is acting as his or her lawyer or advocate or perceives that the lawyer-mediator is advocating for an opponent, the ethical concerns for the lawyer-mediator mount.

Likewise, under FRPC 4-2.4, if the lawyer-mediator assumes an evaluative role and gives one party an opinion as to the likely outcome at trial, this may sound much like giving legal advice. To the extent that the lawyer-mediator’s experienced opinion favors one side over the other, can the lawyer-mediator still be considered neutral? To the extent that the lawyer-mediator believes one party should move its settlement position more than the other to reach settlement, can the lawyer-mediator still be considered neutral? And if the lawyer-mediator is giving advice to both sides, such as by giving an opinion on the outcome, has not the lawyer-mediator taken on two clients whose interests are at odds — even though the mediator told the parties at the beginning of the mediation session that he or she is not acting as either party’s lawyer? In addition to The Florida Bar ethics rules that apply to lawyer-mediators, there are numerous ethics rules that apply to all mediators, including lawyer-mediators.

Another ethical problem arises for the lawyer-mediator when the time comes to draft a settlement agreement or memorandum of understanding. Drafting legal documents is the practice of law, and one lawyer cannot draft for two disputing parties at once without raising ethical concerns. The lawyer-mediator is again faced with a two-client problem and a conflict of interest in trying to draft a settlement document. It would appear that under FRPC 4-2.4, drafting should be left to counsel or the parties in order to avoid ethical pitfalls for the lawyer-mediator while serving as a third-party neutral.

The ethical conflict of interest problems for the lawyer-mediator are less foreboding when all parties are represented by counsel. Represented parties are less likely to view the mediator as providing legal advice if they have their own counsel with whom to consult, and such counsel could insulate the parties from adverse impacts of a mediator’s evaluative opinions or views of the law and possible outcome.

Neutrality and Disclosure Obligations
While not expressly set forth in the FRPC, lawyer-mediators may have neutrality and disclosure obligations imposed by various mediator ethics codes and standards, and the comment to FRPC 4-2.4 states that these may be binding ethical constraints:

[2] 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 may also 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.30

As discussed, Florida has adopted rules for certified and court-appointed mediators that govern many aspects of mediator conduct. These rules obligate mediators to disclose information about potential conflicts of interest to ensure mediator neutrality. The Florida Rules for Certified and Court-appointed Mediators 10.340, for example, states that a mediator “shall not mediate a matter that presents a clear or undisclosed conflict of interest” and that “[d]isclosure shall be made as soon as practical after the mediator becomes aware of the interest or relationship giving rise to the potential conflict of interest.”31 While not specifically restated or discussed in the comments in 4-2.4, it would appear likely that failure to comply with disclosure standards in the Florida Rules for Certified and Court-appointed Mediators would also constitute an ethical violation under FRPC 4-2.4.

Confidentiality Concerns in Mediation
While a lawyer’s primary obligation of confidentiality runs to the client and is covered by FRPC 4-1.6, Confidentiality of Information, a lawyer-mediator also has confidentiality obligations. A mediator has two separate, although related, confidentiality obligations in mediation that involve different considerations. The first is the mediator’s obligation during the course of a mediation session not to disclose to one party any confidential information provided by the other party. This obligation is not directly addressed in the FRPC, but is cited in the Florida Rules for Certified Mediators.32 The second is the requirement that the mediator, the parties, and others present at the mediation session maintain the confidentiality, after the mediation session is over, of all communications made in or incident to the mediation.33

While the mediation session is pending, the primary “confidentiality” concern is that the mediator not disclose information to one party that the other party revealed to the mediator in confidence. The consequences of disclosure of information during the mediation session could be disastrous to the settlement process and to the parties’ confidence in the mediator. Intentional disclosure of confidential information would result in disciplinary actions pursuant to the rules for certified mediators, but could also result in mediator liability under a breach of contract theory. Because there is no attorney-client relationship between the lawyer-mediator and the parties, however, there may not be a direct ethical violation under the FRPC.

A more significant concern may be maintaining the confidentiality, after the mediation session is over, of communications made in or incident to the mediation. While information that is otherwise admissible or discoverable does not become inadmissible or protected solely by reason of its disclosure or use in mediation, the scope of what is protected is quite broad. As discussed above, Florida rules for certified mediators provide that all communications made in or relating to the mediation session are confidential. While the obligation of confidentiality for attorneys is based on the rules for certified mediators, rather than based in Rules of Professional Conduct, the lawyer-mediator may be on perilous ground in ignoring the post-mediation confidentiality requirement.

Conclusion
It can be difficult for a lawyer, or for a lawyer-mediator, to determine whether particular conduct in negotiation and mediation falls within acceptable parameters under the rules of professional conduct. This determination is further clouded by the presence of multiple and ever-changing ethics rules and conduct standards. Sometimes, other statutory edicts may confuse the issues further, or impede enforcement of ethical constraints on lawyer conduct. Is progress being made, or are we being dealt setbacks?34 We fall back upon “generally accepted conventions in negotiation” as a guide, whatever they are, and, the authors suspect, our own internal moral judgments.

1 Portions of these materials are derived from O. Russel Murray, The Mediation Handbook: Effective Strategies for Litigators, Chapter 7: Ethics in Mediation and Negotiation (Bradford Pub. 2006).
2 R. Reg. Fla. Bar 4-1.1, Competence.
3 R. Reg. Fla. Bar 4-4.1, Truthfulness in Statements to Others.
4 R. Reg. Fla. Bar 4-Preamble: “As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others. As intermediary between clients, a lawyer seeks to reconcile their interests as an advisor and, to a limited extent, as a spokesperson for each client. A lawyer acts as evaluator by examining a client’s legal affairs and reporting about them to the client or to others.” (Emphasis added.)
5 R. Reg. Fla. Bar 4-3.4, Fairness to Opposing Party and Counsel. This rule generally pertains to a lawyer’s conduct in litigation and trial, but the obligations and the prohibitions against concealing or falsifying evidence and assisting others to do the same could impact lawyers in mediation and negotiation as well, although these may more directly be covered under Rule 4.1.
6 R. Reg. Fla. Bar 4-1.4, Communication.
7 R. Reg. Fla. Bar 4-2.1, Advisor: “In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social, and political factors that may be relevant to the client’s situation.”
8 Fla. Stat. 44.1011(2) defines mediation as a process whereby a neutral third person called a mediator acts to encourage and facilitate the resolution of a dispute between two or more parties. It is an informal and nonadversarial process with the objective of helping the disputing parties reach a mutually acceptable and voluntary agreement. In mediation, decisionmaking authority rests with the parties. The role of the mediator includes, but is not limited to, assisting the parties in identifying issues, fostering joint problem solving, and exploring settlement alternatives.
9 R. Reg. Fla. Bar 4-4.1, Truthfulness in Statements to Others.
10 As stated, for example, in the Comment to R. Reg. Fla. Bar 4-2.2, Intermediary, “In performing such a role the lawyer may be subject to applicable 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” (ABA/AAA Code of Ethics for Arbitration). The ABA/AAA Code of Ethics for Arbitration requires extensive disclosures to avoid even the appearance of bias. A discussion of disclosure obligations is beyond the scope of these materials. See O. Russel Murray, Shifting from an Actual Bias to an Appearance of Bias ADR Disclosure Standard, 7 ABA Commercial & Business Litigation Newsletter 7 (Winter 2006); O. Russel Murray, Arbitrator and Mediator Disclosure Obligations in Colorado, 34 The Colorado Lawyer 9 (2005).
11 As of July 10, 2007, 33 states have adopted the new ethics 2000 Rules, with modifications. Nine states have circulated proposed rules. Seven states have committees that have not yet issued a report, and only one state (Alabama) is not considering the recent revisions. See American Bar Association: Center for Professional Responsibility, Status of State Review of Professional Conduct Rules (2007), available at www.abanet.org/cpr/jclr/ethics_2000_status_chart.pdf.
12 Murray, The Mediation Handbook: Effective Strategies for Litigators at 157 (Bradford Pub. 2006).
13 Formal Opinion 06-439, p. 1.
14 Id.
15 Id. at 4.
16 Some commentators have taken issue with Formal Opinion 06-439, regarding it as a setback to the progress of mediation as a process for dispute resolution by permitting too much leeway for deceit. Kimberlee K. Kovach, Ethics Opinion a Step Back in Time, Complicates Responsibility of Mediators, available at meetings.abanet.org/webupload/commupload/DR018000/sitesofinterest_files/
Ethics_Opinion_a_Step_Back_in_Time.pdf.
17 Canon 7 of the old ABA Model Code of Professional Responsibility (predating even the ABA Model Rules which long ago replaced it).
18 Emphasis added.
19 Query whether this sentence urging honest dealings clarifies or complicates the Comment to Rule 4-4.1 to the effect that “generally accepted conventions in negotiation” override the obligation to be truthful.
20 Emphasis added.
21 Melissa L. Nelken, ed., Understanding Negotiation (Anderson Pub. Co. 2001).
22 Id. at 356.
23 Gerald Wetlaufer, The Ethics of Lying in Negotiations, 75 Iowa L. Rev. 1219, 1230 (1990).
24 Alvin Rubin, A Causerie on Lawyers’ Ethics in Negotiation, 35 La. L. Rev. 577, 589 (1975).
25 Murray, The Mediation Handbook: Effective Strategies for Litigators at 157 (Bradford Pub. 2006).
26 Id. at 159.
27 R. Reg. Fla. Bar 4-4.1, Truthfulness in Statements to Others — Comments. “Whether a particular statement should be regarded as one of fact can depend on the circumstances. Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact. Estimates of price or value … and a party’s intentions as to an acceptable settlement of a claim are ordinarily in this category, and so is the existence of an undisclosed principal. . . . ”
28 Florida Rules for Certified and Court-appointed Mediators.
29 When the mediator is also a judge or magistrate with some oversight or adjudicative authority over the parties and the dispute, other judicial rules of conduct may apply. It is beyond our scope to delve into the role of judges when involved in mediation or settlement activities in matters before them. Generally, this is not an issue in Florida, as most judges do not get involved in the settlement of cases before them — at least not at the state court level. Hon. John C. Cratsley, Judicial Ethics and Judicial Settlement Practices: Time for Two Strangers to Meet, ABA Dispute Res. Mag 16 (Summer 2006), proposed one simple ethical rule for sitting judges and magistrates: “[A] bar on any judge who undertakes settlement activity from ultimately trying the case if settlement fails — as well as … written consent of the parties to participate in judicial settlement activities, disclosure of the settlement technique to be used by the judge, and mandatory training for any judge undertaking mediation or other form of settlement.”
30 Emphasis added.
31 Fla. R. Med. 10.340.
32 Fla. R. Med.10.360(b).
33 Fla. R. Med. 10.420(a)(3): “[C]ommunications made during the process are confidential, except where disclosure is required by law.”
34 Kovach, Ethics Opinion a Step Back in Time, Complicates Responsibility of Mediators, available at meetings.abanet.org/webupload/commupload/DR018000/sitesofinterest_files/
Ethics_Opinion_a_Step_Back_in_Time.pdf.

Stephen A. Bailey, prior to starting the The Bailey Law Firm, P.L., worked as an eminent domain trial attorney for a large statewide law firm representing owners against the government. Mr. Bailey also worked as an eminent domain trial attorney for the Office of the Attorney General representing the Department of Transportation in its acquisition of properties. He is a Florida Supreme Court certified circuit and county court mediator and teaches real estate law, real estate appraisal, real estate principles, and business law at the Florida State University College of Business.

O. Russel Murray is the managing director of ADRcom.com and is one of the leading business and commercial ADR professionals in Colorado and the Rocky Mountain region. He has arbitrated and mediated cases ranging from mediation of conflicts among multinational corporate partners in a power generation facility in Latin America; to arbitration of securitization of debt issues in bank/borrower disputes; to mediation of shareholder disputes in closely held corporations; to mediation of issues among oil & gas operators and landowners; to mediations and arbitrations between contract disputants, joint venturers, lenders and project participants, trade secret litigants.