Opinion 202102

SUMMARY: When a lawyer serves as a third-party neutral in a domestic relations matter that may present a risk of domestic abuse to an unrepresented party, or to a child or other member of the household, the lawyer should provide an explanation of the role of the third-party neutral that is adequate to enable the unrepresented party to make an informed decision whether to participate. This communication is particularly important when the lawyer intends to draft a written confirmation if the alternative dispute resolution (ADR) process produces a resolution.

Issue presented:

May a lawyer act as a third-party neutral under RPC 2.4 in a domestic relations matter when a party is unrepresented and the matter potentially involves risk of domestic abuse to a party, child or other household member?

Short answer:

Yes, subject to important considerations.

Rules:

RPC 2.4 and 1.12

Discussion:

A lawyer acting as a third-party neutral under Rule 2.4 must be sensitive to, and adequately address, the possibility that an unrepresented party may not fully understand the lawyer's neutral role. Absent an adequate explanation, an unrepresented party may believe that the lawyer's assistance in resolving the matter includes assistance that is incompatible with the lawyer's role as a third-party neutral. This concern is particularly acute in a domestic relations matter where there may be risk of domestic abuse to an unrepresented party or to a child or other household member.*n1.

As a threshold matter, ADR is ordinarily not an appropriate means of resolving matters that involve domestic abuse.*n2. Domestic relations cases are particularly common settings for abusive tactics by which an abuser can reestablish power and control over a former partner long after a relationship has ended.*n3. Nevertheless, subject to the requirements of RCW 26.09.016(2), a party at risk of domestic abuse may make an informed decision to proceed with ADR, if the lawyer provides adequate information about the limitations of the role of a third-party neutral and otherwise believes ADR is appropriate.*n4.

Rule 2.4(b) provides: "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."

Comment [3] to the rule elaborates on the lawyer's duty to unrepresented parties because, "[u]nlike 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." It notes that the potential for confusion is "significant" when a party is unrepresented. A statement of non-representation might suffice in some situations, such as when an unrepresented party frequently uses ADR. However, the Comment provides that "more information will be required" in other circumstances, and in those instances "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." Comment [3] concludes: "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."

In determining the extent of disclosure required before mediating a domestic relations matter, a lawyer should consider that it may be difficult to detect a risk of domestic abuse. Because an unrepresented party who has been a target of abuse might not volunteer that information, a lawyer may find it appropriate to develop questions to use in screening potential matters. In addition, such a party may have unrealistic expectations about the role of a neutral that would not be dispelled by a statement of nonrepresentation. A lawyer may wish to consider offering concrete examples, such as an explanation that the neutrality required of a mediator precludes giving any advice and precludes commenting on the reasonableness or unreasonableness of a party's proposal.*n5.

Although a lawyer typically has limited information about the sophistication of the parties at the outset, the lawyer may develop questions or concerns regarding an unrepresented party's comprehension of the neutral's role as the mediation progresses. Training in the area of domestic abuse can assist the lawyer in interviewing techniques or identifying behavioral cues that could be of value in assessing whether undisclosed abuse may be an issue that would merit supplemental explanations or disclaimers about the neutral's role.

If the ADR process results in an agreement, the third-party neutral may draft a written confirmation of that agreement with as much or as little specificity as appears warranted under the circumstances. However, the neutral may not draft a pleading with customized provisions on behalf of both parties nor undertake a common representation of the parties pursuant to Rule 1.12(a). WSBA Advisory Opinion 201901. When drafting a confirmation of a mediated agreement, the lawyer acting as a third-party neutral should consider the risk that a court may hold that the writing meets the standards for an enforceable agreement despite the lawyer's intention not to represent either party.*n6.

Footnotes

1. "Domestic abuse," as used in this opinion, refers to patterns of behavior that fit the definition of "domestic violence" in RCW 26.50.010(3) as well as relevant conduct that may be described in other statutes, e.g., RCW Ch. 9A44, 26.44, and 26.51. In addition to harm inflicted directly by a party on a household member, the term includes indirect but very serious harm inflicted on children who witness domestic abuse and the fear of imminent harm to children. In re Marriage of Stewart, 133 Wn. App. 545, 551, 137 P3d 25 (2006) (children witnessing abuse); Rodriguez v. Zavala, 188 Wn.2d 586, 596-8, 398 P.3d 1071 (2017) (fear of imminent harm to children).

2. RCW 26.09.016(1) ("Mediation is generally inappropriate in cases involving domestic violence and child abuse").

3. RCW 26.51.010.

4. The availability of independent support, such as that provided by a domestic violence advocate, is a factor that may weigh in favor of mediating a domestic relations dispute that presents a risk of domestic abuse. RCW 26.09.016(2).

5. A lawyer may also consider offering concrete examples pertinent to the issues in dispute in the particular case. For example, if one party's retirement accounts are a significant asset and the other party has limited experience with or understanding of such financial matters, a lawyer may wish to explain that the neutral role precludes offering information or guidance regarding the accounts.

6. The main points of a settlement between parties might be held enforceable even if the parties anticipate a more definitive agreement. See Marriage of Ferree, 71 Wn. App. 35, 856 P.2d 706 (1993) (agreement of parties and counsel reached with assistance of court commissioner was enforceable though it was not reduced to writing or entered in the court record). See also Morris v. Maks, 69 Wn. App. 865 (1993) (letters between counsel established a binding settlement agreement even though the parties contemplated a more formal written agreement).