John Bulman and Chris Whitney Quoted in Rhode Island Lawyers Weekly: ABA Opinion Clarifies Lawyer-Mediator Ethics Rules
Excerpted from the November 5, 2025 edition of Rhode Island Lawyers Weekly
As more and more attorneys offer their services in settling disputes, the American Bar Association (ABA) Standing Committee on Ethics and Professional Responsibility saw the importance of providing additional guidance on ABA Formal Opinion 518, which explains lawyer-mediators’ ethical duties under the Rules of Professional Conduct.
Opinion 518 “reinforces the concepts in Rule 2.4 that it is important for the lawyer-mediator not only to inform unrepresented parties that the lawyer is not representing them, but to go the extra mile in explaining the difference between the attorney’s role when serving as a third-party neutral as opposed to representing a client.”
Pierce Atwood attorney John Bulman, a mediator for the past 35 years, said that he explains to the parties involved that he is a “facilitative” rather than an “evaluative” mediator, adding, “I don’t make any evaluations, at least not for the first 12 hours of mediation. I may get a little more evaluative toward the end of the mediation, but the bottom line is it’s a self-determination process, as they say, and the parties’ best interest that’s not for me to say as a mediator.”
The second part of Opinion 518 discusses the need to “avoid stating that the lawyer-mediator is acting to achieve a party’s best interest or that a proposed settlement is in their best interest, lest the party rely on what they mistakenly perceive to be an assurance from the lawyer-mediator.” Opinion 518 also attempts to differentiate between “legal advice” and “legal information.”
Pierce Atwood attorney Chris Whitney, an experienced commercial litigation attorney who has successfully mediated and arbitrated countless disputes, stated that, “the line is not as bright as it might seem on paper. The reality is the reason lawyers hire me to do this is because they know I have a good grasp of the law. They know that a lot of these cases turn on different legal issues, and they expect me to weigh in with my thoughts on how the law might apply to the facts. If I didn’t do that, they probably wouldn’t want to engage me.”
To illustrate his point, Chris cited the Massachusetts Prompt Pay Act, which “operates harshly and is frequently misunderstood.” He has seen parties in mediation, “engage in wishful thinking and seen the need to set them straight on how the law works,” adding, “if one party has ‘no shot’ on its claim and the other side is offering it money to settle, why wouldn’t I weigh in on that?”
John Bulman noted that he uses a technique where he asks the party or their lawyer to, “walk me through how you get from here to there because I don’t fully understand it.” As they do so, it becomes readily apparent that, “perhaps their position isn’t as strong as they think it is.”
Another technique he uses is to ask the party and their attorney, “what happens if the judge or arbitrator finds against you on this issue? How does that affect your case.”
And while the attorney will resist the question, thinking that they can’t lose on the issue, John has them work through the question, which often, “does a good job of explaining to the parties and the lawyer, to an extent, what the dangers are in their case and what the risks are in their case and I’ve not said anything about my opinion on it.”
John also noted that he tries to, “engage the businesspeople in those discussions, as lawyers can get stuck in advocacy mode. The people responsible for the business decisions, “understand risk, and they understand the slipperiness of going into court or arbitration.”
In addition to opinions form the ABA and Massachusetts Office of Bar Counsel, some mediators stated that they would find it more helpful if the courts applied the concepts in those opinions to “specific factual scenarios.”
One notable case that mediators are watching involved a lawyer-mediator who drafted a separation agreement for pro se divorcing parties after handling the mediation. An alleged drafting error that the husband argued skewed the agreement in the wife's favor prompted the husband to file a legal malpractice claim.
While it has been suggested that the lawyer-mediator should “draft an agreement to memorialize the unrepresented parties’ understanding,” John Bulman (who does not have experience in the divorce context), said he would “run for the hills as fast as I could” if asked to do so.
Instead, Bulman asks pro se parties to do “a first draft of a memorandum of understanding, even if the exact dollar figures and other terms need to be worked out. That process will surface certain issues, like the undesirability of a general release, if the parties are involved in multiple projects and not just the one that is the subject of the mediation.
“The goal,” John explained, “is to not leave the mediation without achieving a mutual understanding on all the key issues.” In fact, he usually requires that the parties sign the memorandum of understanding before leaving the mediation, adding, “buyer’s remorse is certainly a factor in some mediations.”
The complete article by Kris Olson can be found in the November 3, 2025 edition of Rhode Island Lawyers Weekly.