The Section of Dispute Resolution has appointed a task force to look into the controversial issue of the Unauthorized Practice of Law (UPL). The Task Force is led by Council Member David Hoffman, Hill & Barlow, Boston, Mass. While the task force is studying the issue, we would like to share the following article by Mr. Hoffman to avoid the unauthorized practice of law for attorney mediators mediating in states in which they are not members of the bar and for people from other professions.

    Much debate has swirled around the question of whether mediation, or some aspects of mediation, amount to the practice of law. It will probably be several years, at a minimum, before the debate is resolved. In the meantime, however, mediators who are not lawyers can reduce the risk of being prosecuted for engaging in the unauthorized practice of law ("UPL") by adhering to the following guidelines:

• Use an "Agreement to Mediate," signed by the parties and the mediator, stating that the mediator is not providing legal representation, legal advice, or legal services, and that the mediator has recommended that each of the parties obtain independent legal advice (if counsel are not at the mediation) before signing any final settlement agreement.

• Use caution in advertising your services - in particular, avoid suggesting that the parties do not need counsel.

• If the parties do not have counsel, direct them to referral lists or referral sources; avoid recommending a specific attorney.

• When the parties have reached agreement, do not draft a formal settlement agreement; instead prepare a "Memorandum of Understanding" setting forth the main points of the parties agreement in their own words.

• Where appropriate, consult with the parties' attorneys about technical legal issues that arise during the course of the mediation.

• Even if the parties ask you to do so, do not prepare pleadings or other documents to be filed in court; those should be prepared and filed only by counsel or the parties themselves.

• When in doubt, consult with program directors or other mediators about UPL questions (while at the same time observing confidentiality about the identity of the parties in the case).
  Prosecutions of mediators for UPL are relatively rare. The risk is much greater in the area of divorce mediation than any other area of mediation practice, because divorce mediators often perform tasks (such as drafting marital settlement agreements) that are traditionally handled by lawyers.
  N.B. Even lawyers can engage in the unauthorized practice of law if they provide legal services in a jurisdiction in which they are not admitted to the bar. Therefore, the suggestions listed above should be observed by mediators who are lawyers when they mediate in states where they are not licensed to practice.