Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

Full Bio →

Written by

UPDATED: Feb 6, 2012

Advertiser Disclosure

It’s all about you. We want to help you make the right legal decisions.

We strive to help you make confident insurance and legal decisions. Finding trusted and reliable insurance quotes and legal advice should be easy. This doesn’t influence our content. Our opinions are our own.

Editorial Guidelines: We are a free online resource for anyone interested in learning more about legal topics and insurance. Our goal is to be an objective, third-party resource for everything legal and insurance related. We update our site regularly, and all content is reviewed by experts.

It is possible for a lawyer representing a disputant to serve as a mediator, but it is not recommended. A lawyer has an ethical obligation to represent his client vigorously. He or she cannot represent both disputants. If one of the lawyers tries to mediate, even with the consent of both parties, it’s not likely that the other side will be entirely unbiased.

If the mediation does not result in settlement, there may be a lawsuit or the continuation of a lawsuit. In that case, the lawyer also acting as the mediator cannot simply forget everything that was said during the mediation, and thus, one side would be disadvantaged. Even where matters are amicably “settled,” one side or the other often feels that there was a disadvantage because a lawyer for one party served as mediator.

State Laws on Mediation and Mediators

Some states have enacted laws preventing lawyers from changing their role to that of a mediator after agreeing to represent a particular party. In these states it is considered a violation of the attorney-client relationship to attempt the mediation. This restriction is further understood when you consider what will occur during the mediation compared to what a lawyer typically does.

Get Legal Help Today

Find the right lawyer for your legal issue.

 Secured with SHA-256 Encryption

Mediation Process

During a mediation session a neutral mediator who knows nothing about the case thus far listens to both parties discuss their case. They take notes and may bring up certain strengths and weaknesses in each side’s arguments. Some mediators may even use an “evaluative” mediation stance where they briefly mention the parameters of where an ideal case and a worst case scenario would lie in court. The goal of these measures is to move the parties toward the best alternative to a negotiated agreement. The mediator never intimidates, lies to, or argues for either side.

Lawyers Roles in Mediation

A lawyer has the job and ethical obligation to represent a single party in a case and to do so to the utmost of their ability. They are thoroughly entrenched in the case with only client’s perspective in mind, and will know very little about the other side until discovery, which takes place later in a litigation proceeding. The lawyer is selling their services, so they are going to tell their client exactly what their case is worth and give a prediction of whether the party will receive a positive verdict. Lawyers will, on occasion, contact the other party if they are not already represented by council. They will use intimidation whenever possible and do everything they can to help their client prevail. So, when choosing a mediator, select someone other than your existing attorney to ensure a fair outcome from the case.