Schulz article

Another area of potential civil liability for campus mediators is liability for the unauthorised practice of law. Only lawyers are entitled to practice law in North America. If a campus mediator is also a lawyer, when practising mediation that mediator may not practice law.19 Thus, there are at least two areas of concern for campus mediators, especially those who are also lawyers: drafting the settlement agreement and advising disputants. Both of these activities may constitute the unauthorised practice of law.

If a mediator merely records the disputants’ own words of agreement, the mediator is not practising law.20 However, if the mediator chooses her or his own language to draft a legally enforceable agreement, that may constitute the unauthorised practice of law. Lawyer-mediators who review mediated agreements with an eye toward their legal sufficiency have crossed the line and are likely practising law. In those cases, the lawyer-mediator could be sued qua lawyer, as opposed to qua mediator, thereby greatly increasing the likelihood of civil liability.

In addition to drafting, advising can cause problems for campus mediators. If a mediator provides legal advice during mediation it may constitute the unauthorised practice of law. If campus mediators are deemed to be practising law by virtue of the fact that they are advising disputants, all of the standards of practice, legal and fiduciary duties that lawyers have toward clients could be imputed to those mediators, a consequence not likely to be favoured by most campus mediators, who are often students working on voluntary bases.

There is one Canadian case that addresses the unauthorised practice of law in a mediation context. In R. v. Boldt,21 an Ontario paralegal was accused of carrying on the unauthorised practice of law in contravention of the Law Society Act.22 The court found that there was enough evidence to suggest that the paralegal may have been practicing law when she drafted a mediation agreement in a family dispute. As a result, it became open to the court to examine other instances of the paralegal’s alleged unauthorised practice of law, such as her pamphlets and past conduct. Thus, if a mediator is accused of the unauthorised practice of law, Canadian courts can examine the mediator’s past behaviour and documents in order to reach a decision. If a pattern of similar conduct exists, a conviction for the unauthorised practice of law is more likely. In the Boldt case, a new trial was ordered to determine whether the conduct alleged was actually the unauthorised practice of law. The decision of the court in the new trial is not yet known, so family mediators, and presumably campus mediators, must wait for a definitive answer to the question whether drafting enforceable mediation agreements constitutes the unauthorised practice of law in Ontario.23

In the United States, the question of mediator liability for the unauthorised practice of law is best represented by Werle v. Rhode Island Bar Association.24 In Werle, the court examined divorce mediation and civil rights in the context of the unauthorised practice of law.25 Werle was a psychologist and professor of psychology experienced in family mediation working in Rhode Island. Werle’s business was called ‘Werle Consultants Family Mediation Center’ and its services were described in a brochure. According to the brochure, the Center provided “impartial mediation and arbitration service for divorcing couples, assisting them in reaching agreement upon division of property, support and child custody.”26 The Rhode Island Bar Association and members of its former Committee on Unauthorised Practice of Law agreed that the brochure and the practice described probably violated Rhode Island’s laws. They sent Werle a letter requesting that he discontinue his divorce mediation business on the grounds that it involved him in the unauthorised practice of law. After reading the letter the Committee sent to him, Werle believed that the Committee on Unauthorised Practice of Law would recommend prosecution if he did not cease his practice. The Attorney General for Rhode Island refused to issue an opinion as to whether Werle’s practice constituted the unauthorised practice of law. So, Werle stopped mediating and sued the Rhode Island Bar Association and members of the Committee claiming they violated his First and Fourteenth Amendment rights to earn a living. The court held that even if it was the threat of prosecution that stopped Werle from offering divorce mediation services, allegedly in violation of laws prohibiting the unauthorised practice of law by non-lawyers, the Bar Association and its Committee were absolutely immune from damage liability under statute. Werle thus demonstrates an intolerance in the United States for mediators who assist parties in tasks, such as division of property, traditionally handled by lawyers. Thus, American campus mediation programs should ensure that they are not violating state laws or bar association rules when they engage in mediative tasks that could be construed as the unauthorised practice of family law.

Page last updated 11/27/2005

A project of Campus Conflict Resolution Resources.
Supported by a FIPSE grant from the US Department of Education
and seed money from the Hewlett Foundation-funded CRInfo project.

Correspondence to CMHE Report
(Attn: Bill Warters)
Campus Conflict Resolution Resources Project
Department of Communication
585 Manoogian Hall
Wayne State University
Detroit, MI 48201.

Volume 3, Number 2, Feb 2003

Campus Mediators and Civil Liability (page 3 of 8)

Unauthorised Practice of Law