Must Mediators of Disputes in Litigation be Lawyers?

By: Donald L. Swanson

Many mediators, in a variety of contexts, are not lawyers.

In the mediation of lawsuit disputes, however, lawyers predominate. And that makes practical sense—especially in complex cases.

But in lawsuits, even complex ones, the mediator is not required to be an attorney. At least, that’s the opinion of the Attorney General for the State of Tennessee.

The Attorney General opinion arises in this context.  A Tennessee statute forbids certain attorneys employed by the State of Tennessee from practicing law during “off hours.” So, the primary question the Attorney General answers is this:

• Does serving as a mediator involve the practice of law?”

The Attorney General answers the question, “No.”

Here’s why.

Summary

“Mediation,” under Tennessee law, is an informal process in which a neutral third party conducts discussions among disputing parties to facilitate an agreement between them concerning issues in dispute.

Under definitions of “practice of law” in Tennessee, one component is acting in a representative capacity, either as advocate or counselor.

By contrast, a mediator acts as a neutral—not in a representative capacity. Consequently, the mediator does not engage in the practice of law.

Accordingly, a State-employed attorney who acts as a mediator in off-hours is not practicing law, as defined by Tennessee law, and would not violate Tennessee’s statute prohibiting the practice of law in off-hours.

Further Explanation

The Attorney General opinion adds the following as further explanation.

—Practice of Law

Under the Tennessee law, the “practice of law” means:

• appearing as an advocate for another person in connection with legal proceedings; or
• performing any service involving legal knowledge or advice respecting the legal rights and duties of one requiring the service; and
• the plain language of both definitions contemplates action in a representative capacity, either as advocate or counselor.

—Mediation

Mediation, by contrast, does not involve those elements.  Tennessee law defines mediation as:

• an “informal process” in which a neutral person helps disputing parties reach agreement on issues in a dispute; and
• a dispute resolution “method” involving a neutral third party who helps disputing parties “reach a mutually agreeable solution.”

Under such definitions, a mediator acts as a neutral and not in a representative capacity.

—Summary

So, acting as a mediator under Tennessee law, the Attorney General opinion concludes, does not qualify as the “practice of law.” Therefore, State-employed attorneys are not prohibited from acting as mediators in their off-hours, provided their services do not create an actual or apparent conflict of interest.

[Editorial note: All of that makes perfect sense.]

Conclusion

The Attorney General opinion from the State of a Tennessee provides a helpful and persuasive analysis and rationale that’s likely to hold true elsewhere.

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