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New Drafting Rule for Attorney-Mediators

Written by: Attorney Judith E. Payne

October 9th, 2017

Lawyer-Mediators can now draft settlement agreements

 

On July 1, 2017, an amendment was made to the Supreme Court Rules that now will permit lawyers who mediate family law cases to draft, edit, conclude and file settlement agreements for parties.

Now a lawyer can serve as a mediator in a family law action under Wis. Stat. chapter 767, “in which the parties have resolved one or more issues, to draft, select, complete, modify or file documents confirming, memorializing or implementing such resolution,” provided that certain rules are followed by the lawyer-mediator and spelled out in a written informed consent, signed by the parties, to avoid running afoul of the new SCR rule.

Previously, parties had to figure out how to draft agreements themselves or engage the services of a lawyer to prepare it for them.

The Amended Rule

Here is the full text of the amended Supreme Court rule:

SCR 20:2.4 (c)

(1) A lawyer serving as mediator in a case arising under ch. 767, stats., in which the parties have resolved one or more issues being mediated may draft, select, complete, modify or file documents confirming, memorializing, or implementing such resolution, as long as the lawyer maintains his or her neutrality throughout the process and both parties give their informed consent, confirmed in a writing signed by the parties to the mediation. For purposes of this subsection, informed consent requires, at a minimum, the lawyer to disclose to each party any interest or relationship that is likely to affect the lawyer’s impartiality in the case or to create an appearance of partiality or bias that the lawyer explain all of the following to each of the parties:

  1. The limits of the lawyer’s role.
  2. That the lawyer does not represent either party to the mediation.
  3. That the lawyer cannot give legal advice or advocate on behalf of either party to the mediation.
  4. The desirability of seeking independent legal advice before executing any documents prepared by the lawyer-mediator.

(2) The drafting, selection, completion, modification, and filing of documents pursuant to par. (1) does not create a client-lawyer relationship between the lawyer and a party.

(3) Notwithstanding par. (2), in drafting, selecting completing or modifying the documents referred to in par. (1), a lawyer serving as mediator shall exercise the same degree of competence and shall act with the same degree of diligence as SCRs 20:1.1 and 20:1.3 would require if the lawyer were representing the parties to the mediation.

(4) A lawyer serving as a mediator who has prepared documents pursuant to par. (1) may, with the informed consent of all parties to the mediation, file such documents with the court. However, a lawyer who has served as a mediator may not appear in court on behalf of either or both of the parties in mediation.

(5) Any document prepared pursuant to this subsection that is filed with the court shall clearly indicate on the document that it was “prepared with the assistance of a lawyer acting as mediator.”

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