ABA Formal Opinion 518 – Ethical Guidance for Lawyer-Mediators

By Hon. Judith K. Fitzgerald (Ret.), jfitzgerald@tuckerlaw.com, (412) 594-3933

The American Bar Association (ABA) states on its website: “The ABA was founded in 1878 on a commitment to set the legal and ethical foundation for the American nation. Today, it exists as a membership organization and stands committed to its mission of defending liberty and pursuing justice.” One function the ABA fulfills is promulgating professional ethical standards for those who practice law. Until October 2025, there was no specific opinion offered by the ABA regarding those standards as they apply to lawyer-mediators. On October 15, 2025, the ABA issued Formal Opinion 518 to focus attention on mediators.

Under the rubric “A Lawyer’s Duties to Avoid Misleading Communications When Acting as a Third-Party Neutral Mediator,” the Opinion covers three topics: (1) The Lawyer-Mediator’s Duties under Model Rule 2.4 When Serving as Third-Party Neutral; (2) The Lawyer-Mediator’s Duty to Avoid Statements that Imply that the Lawyer-Mediator is not Neutral but is Seeking to Achieve a Party’s Best Interest; and (3) The Lawyer-Mediator’s Duty to Avoid Dishonesty, Fraud, Deceit, and Misrepresentation When Communicating with the Parties. Of those, the second is the most controversial.

As ABA Opinion 518 is the first effort by the organization to apply various professional responsibility provisions to lawyers who serve as mediators, FedArb, an alternative dispute resolution (ADR) firm specializing in high-stakes, complex legal matters, recently conducted an informal survey to assess lawyers’ attitudes about the Opinion. The majority of respondents were not in favor, invoking two primary grounds: (1) the Opinion merely states professional responsibility standards already in effect; and (2) the Opinion inappropriately interferes with a mediator’s role by stating that a mediator should not tell a participant that settlement is in that party’s best interest.

The reach of the Opinion is noteworthy. It applies only to lawyer-mediators. Mediators at large are not required to have any formal training, let alone legal education, except for those who join mediator panels of courts and professional organizations which require some form of mediation skills training, usually an initial 20 – 40 hours and/or annual updates. Some mediation-centered organizations have guidelines their mediator members are to follow as a condition of membership. Until this Opinion, however, there was no generally applicable definitive statement regarding professional responsibility for lawyer-mediators.

Although some respondents to the FedArb survey felt that Opinion 518 is unnecessary, a counterpoint is that it serves a purpose both for mediators and mediating parties. Although it should be self-evident that a mediator should not act in a dishonest, fraudulent, deceptive, or misleading way and may not make misleading statements about the strength or weakness of a party’s case, having written guidance reinforcing those precepts never hurts. That counsel to a party should not act in a dishonest, fraudulent way is equally self-evident; yet ABA Model Rule of Professional Conduct 8.4(c) sets out the tenet that lawyers should not “engage in conduct involving dishonesty, fraud, deceit, or misrepresentation,” and no one suggests that the Rule is superfluous.

Publishing the premise that certain rules that govern a lawyer’s relationship with a client apply to a mediator who has been hired, not to serve as counsel, but to assist parties in reaching resolution, merely clarifies the reach of the Rules of Professional Conduct so there is no longer any doubt that lawyers are bound by the Rules, regardless of the position they hold in a mediated dispute. That bit of redundancy is certainly harmless and may be helpful. Lawyers do not put their professional obligations behind when they put on a mediator’s hat. The Opinion offers guidance to parties to the mediation and their counsel in evaluating a mediator’s neutrality as well as assisting in building trust in the process by articulating formerly elusive standards for mediators. This seems to be a “no harm, no foul” proposition.

As to the criticism that the Opinion goes too far by restricting mediators from telling a party that settlement is in its best interest, lawyers should keep in mind that there are a variety of mediation formats, but in none of them is the mediator the factfinder. The mediator’s job is to remain a neutral who assists the parties in reaching a consensual resolution to their dispute. It is true that mediators are sometimes asked to evaluate the parties’ positions and to use the strengths or weaknesses to push a settlement. Some mediators are comfortable in that role as they may have an opinion based on their experiences as to which party has the better case.  Others are not, seeing their role as aiding the parties without steering the discussions one way or the other.

Those who are not comfortable argue that a capable mediator can offer suggestions to help the parties reach their own conclusions about their own best interests without making an affirmative declaration of the mediator’s belief in what the mediator perceives to be a good outcome. They assert that a mediator can ask the party to consider whether the settlement is in its best interests and identify reasons and factors for appropriate evaluation. Those who are comfortable offering an opinion note that the purpose for which they were retained as mediator was to evaluate the positions of all parties to help the clients understand the risks of litigation and the benefits of settlement. In that regard, they contend that settlement is usually in the best interests of all parties but, in some cases, definitely better for a particular party.

Regardless of which process the mediator undertakes, there are some benefits of mediation that can be articulated, notwithstanding the circumstances that led the parties to mediate. For example, settlements will eliminate the time to get to judgment and the expense and emotional cost of discovery, litigation, collection, and appeals. Settlements enable the parties to move onto other life events. In that respect, Opinion 518 does not prohibit the mediator from helping the parties to assess the attributes of settlements and other factors important to them in reaching their own conclusions. In this context, Opinion 518 may be seen, not as restraining use of a tool in the mediator’s toolbox, but as reinforcing the widely accepted notion that a mediator is, and always must remain, neutral.  

Opinion 518 has precipitated strong viewpoints from supporters and detractors. Conflicting perspectives seem likely to continue, given that this is the first time the ABA has directed specific attention to the professional obligations of lawyers as mediators and there is no precedent for how the Opinion will be applied in practice. Perhaps, in time, Opinion 518 will be modified. For now, legal professionals who serve as mediators should take heed and, if nothing more, use Opinion 518 as a reminder of their obligations to the mediating parties.

Reprinted with permission from the May 1, 2026, issue of The Legal Intelligencer. © 2026 ALM Media Properties, LLC. Further duplication without permission is prohibited.  All rights reserved.