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Massachusetts Supreme Court Rules Mediation Constitutes the Practice of Law in Limited Circumstances

Jennifer Shack, June 21st, 2012

Last week, the Massachusetts Supreme Judicial Court ruled that an attorney who has resigned from the law as a disciplinary sanction, or has been disbarred or suspended, may not be able to mediate because mediation may constitute legal work that would violate the bar’s discipline.

The ruling states that one of the factors to be considered in deciding whether a disciplined attorney is undertaking legal work is “whether the work as performed by the lawyer invokes the lawyer’s professional judgment in applying legal principles to address the individual needs of clients.” This factor may come into play if the attorney uses evaluative mediation. As the Supreme Judicial Court did not have the necessary information about the practice of mediation in the state, the case was remanded to the lower court for a decision about whether the former attorney-turned-mediator in question engaged in work that meets the new test for legal work.

The decision brings up two questions. First, does evaluating the case really constitute legal work? And second, does the distinction the Court makes between disciplined lawyers who are mediating and mediators who are not lawyers hold up? The ruling confirms that mediation in itself is not the practice of law, but finds that it could very well be “legal work” to evaluate a case in mediation. The Court seems to be drawing a fine line – only an attorney can “invoke the lawyer’s professional judgment….to address the individual needs of clients.” Yet, non-lawyers who practice evaluative mediation invoke their professional judgment to address the needs of clients, too. The Court’s reasoning seems to lead to the conclusion that a mediator who is not an attorney cannot be evaluative without practicing law.

I would love to hear others’ thoughts on this.

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5 Responses to “Massachusetts Supreme Court Rules Mediation Constitutes the Practice of Law in Limited Circumstances”

  1. Kent Lawrence says:

    Schizophrenia. It would take a lawyer (or judge) to rationalize this one. They want to get this “bad boy” former lawyer so badly…. Hard cases make bad law.

  2. Jennifer Shack says:

    I agree, Kent. It does seem that they’re rationalizing a way to keep him from becoming a mediator.

  3. It sounds like they are saying, “once a lawyer, always a lawyer.” Which to some extent I agree with. Once you have practiced law, it is hard to do anything that does not reflect your training, including mediation.

    I was just solicited by a new online service that recruits “experts” in various fields to offer advice to people looking for various kinds of information. My question was whether my offering advice about mediation might constitute legal advice for which I might not be licensed in some states, and for which I might not be protected if someone who paid for my advice later claimed that my advice was wrong.

    Mediation being an unregulated profession in most states, we are really in the wild west as far as creating rules and standards. It sounds like Massachusetts wants the bar to continue to regulate mediators who are or also were lawyers. And I guess I can understand some reasons for that.

  4. Jennifer Shack says:

    I can see what you’re saying, Joe. I like your wild west analogy. I definitely agree that we’re often shooting from the hip when it comes to dealing with regulating mediator behavior and other ethical issues. I’m still not sure, though, that you can selectively bar an attorney from performing the same tasks as other professionals in mediation.

    BTW – if you’r interested in more perspectives on this, visit RSI’s discussion board on LinkedIn: http://linkd.in/MTCdb8

  5. Yes, I am also understanding that what you’re saying, Joe. Its true that Mediation being an unregulated profession in most states, we are really in the wild west as far as creating rules and standards.

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