By Francine Friedman Griesing, Esq.
The Impact of ABA Formal Opinion 518 on Pennsylvania Lawyers
Anyone who has represented clients in litigation knows to expect the unexpected. It can be a smoking gun document, a recanting witness or a changing law. Litigators need to be facile, pivoting when circumstances change. Some lawyer advocates and neutral mediators may have felt there was an unexpected shift in their ethical responsibilities that required pivoting after October 15, 2025. On that date, the American Bar Association (ABA) Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 518 – A Lawyer’s Duties to Avoid Misleading Communications When Acting as a Third-Party Neutral Mediator. Regardless of individual reaction to this opinion, lawyers engaging in mediation, whether representing clients or serving as a third-party neutral, should review their professional obligations.
Formal Opinion 518 addresses how lawyer-mediators should handle party communications under the ABA Model Rules of Professional Conduct (“ABA Rules”) and distinguishes them from the responsibilities of lawyer advocates. The Opinion has stimulated debate among attorneys representing clients in mediation and neutral mediators about their respective duties. Some question whether the Opinion materially alters what is permissible. Others view the Opinion as merely memorializing the contours of mediator conduct to which they already adhered. What does Formal Opinion 518 and ABA Model Rules cited therein mean for lawyer advocates and lawyer neutrals engaging in mediation in Pennsylvania? The ABA Rules serve as a template for rules in various jurisdictions, but Pennsylvania has not adopted the ABA Model Rules verbatim. For purposes of this article, readers can assume there are no material differences between the Pennsylvania Rules of Professional Conduct (“PA Rules”) and the ABA Rules referenced in Formal Opinion 518.
Formal Opinion 518 has these key takeaways for lawyer-mediators.
Under Rule 2.4, the mediator does not represent any party in mediation and must make that clear to unrepresented parties or parties who do not appreciate the distinction between advocates and neutrals.
Under Comment [3] to Rule 2.4, the lawyer-mediator working with parties who are not sophisticated in mediation should allow sufficient time to discuss the difference between a lawyer’s role as counsel to parties in contrast with the mediator’s role as third-party neutral.
Under Rule 8.4(c), the lawyer-mediator must refrain from communications that are dishonest, fraudulent, deceitful, or misrepresentative.
The Opinion notes under Preamble [3] of the Rules, a lawyer may act as a client representative or “as a third-party neutral, a nonrepresentational role helping the parties to resolve a dispute or other matter.” There are rules relating to the lawyer-client relationship, such as duties of competence, diligence and communications, covering an advocate’s obligations to their clients. In the context of client representation, lawyers also must obey rules regarding an advocate’s conduct vis-a-vis others, such as tribunals, opposing counsel or third parties. Those rules are inapplicable to a lawyer-mediator who does not and cannot represent any of the parties in mediation. Finally, there are rules that apply to lawyers generally regardless of whether they are acting in a client representation capacity or not. These apply to lawyers as advocates and as neutrals.
What Are a Lawyer-Mediator’s Duties to the Parties?
Rule 1.12 requires lawyer-mediators to refrain from (1) representing anyone who was involved in a matter in which the lawyer served as a neutral; or (2) seeking employment from a party or lawyer for a party in which the lawyer is participating personally and substantially as a neutral. These are not the focus of Formal Opinion 518.
The crux of the Opinion focuses on Rule 2.4 Lawyer Serving as a Third-Party Neutral, which delineates appropriate conduct when a lawyer serves as a mediator: (a) A lawyer serves as a third-party neutral when the lawyer assists two or more persons who are not clients of the lawyer to reach a resolution of a dispute or other matter that has arisen between them. Service as a third-party neutral may include service as an arbitrator, a mediator or in such other capacity as will enable the lawyer to assist the parties to resolve the matter. (b) 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 Rule 2.4 provides further guidance on lawyer-mediators managing the process to ensure parties understand the mediator does not represent them, cannot advise them or confirm they reach a resolution in their best interest. It notes that 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. Paragraph (b) requires a lawyer-neutral to inform unrepresented parties that the lawyer is not representing them. For some parties, particularly parties who frequently use dispute-resolution processes, this information will be sufficient. For others, particularly those who are using the process for the first time, more information will be required. Where appropriate, 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. 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.
As Formal Opinion 518 notes, where the parties are not “sophisticated consumers of mediation services, it is prudent for the lawyer-mediator not only to inform all parties that the lawyer-mediator does not represent them but also to afford them an opportunity to discuss what this means.” Although the Opinion is directed at lawyer-mediator duties, lawyers representing clients who are not experienced in mediation also have ethical duties. These include competence (Rule 1.1), diligence (Rule 1.3) and communications (Rule 1.4), which require counsel to advise clients on the mediator’s independent role and the limitations of that position. Lawyers involved in mediation in a representative or neutral capacity should review their preparation and communications to assure they meet these professional obligations.
What Limits Does a Lawyer-Mediator Face in Facilitating Settlement?
Formal Opinion 518 also addresses the limits on lawyer-mediator communications with parties. Most notably, Rule 8.4(c) applies to lawyers both as advocates and as neutrals, providing that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation. Rule 4.1 (Truthfulness in Statements to Others), which applies to advocates and not to mediators, highlights the different expectations of lawyers in each role. It provides in part that in the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person.
Comment [2] to Rule 8.4 states in part: This Rule refers to statements of fact. Whether a particular statement should be regarded as one of fact can depend on the circumstances. Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact. Estimates of price or value placed on the subject of a transaction and a party’s intentions as to an acceptable settlement of a claim are ordinarily in this category.
A mediator does not have the same prerogative to engage in puffery as a lawyer advocating for a client in settlement where embellishment is reasonably expected. Comment [2] to Rule 8.4 does not shield mediators who engage in negotiation-type tactics. Formal Opinion 518 condemns “exaggeration or concealment” as a strategy for mediators to persuade parties to reach agreement. Parties expect the mediator to be impartial and make truthful statements. Lawyer-mediators must avoid sharing information that could be interpreted as true material fact when the mediator doubts the veracity. Neutrality also requires a mediator to refrain from communicating that they believe an offer is in the party’s best interests.
Conclusion
Mediators often serve as neutrals in jurisdictions in which they are not licensed to practice law. They should consider whether the rules of any other forum apply. Lawyer rules of professional conduct do not apply to mediators who are not lawyers. Non-lawyer mediators may derive guidance from Formal Opinion 518 and the rules cited therein. Mediator conduct may be regulated by statute or other forum requirements to which the mediator, lawyer or not, is bound. Additional guidance on mediation ethics can be found in the Model Standards of Conduct for Mediators, adopted by the American Arbitration Association, ABA Section of Dispute Resolution, and Association for Conflict Resolution. The Model Standards as expectations of mediator conduct are also found in CPR Dispute Resolution Services Mediation Procedure, paragraph 4(b) Roles and Responsibilities of Mediator along with CPR Model Rule for Lawyer as Third-Party Neutrals.
As always, I welcome topic suggestions you would like me to address in future columns.
Francine Griesing, Founder of Griesing Law, LLC, has been involved in every aspect of litigation and alternate dispute resolution over the past 40-plus years. For most of her career, she represented individual and institutional plaintiffs and defendants as an advocate in business litigation, employment and alternate dispute resolution. Her clients included professionals, executives, entrepreneurs, law firms, public and privately held companies, nonprofits, higher education and government entities. With over 30 years of experience as a neutral arbitrator and mediator, she now concentrates on dispute prevention and resolution. You can contact her at fgriesing@griesinglaw.com.
Reprinted with permission from the February 6, 2026 edition of the “Legal Intelligencer” (c) 2026 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.