ABA-518
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| ABA Model Rule 2.4 governs lawyers’ duties when acting as mediators, which such lawyers must clearly explain to the parties. As a neutral, such lawyers “should not state that the lawyer-mediator is acting to achieve a party’s best interest or that a proposed settlement is in a party’s best interest.” They may “provide legal information” and “offer an opinion as to how a tribunal is likely a rule on an issue,” but “should not state or imply that a settlement is in the party’s best interest because a tribunal is likely to decide adversely to the party.” As explained an ABA LEO 439 (4/12/06), under ABA Model Rule 4.1, “untrue statements [by lawyers representing negotiation parties] are not entirely forbidden.” But lawyer-mediators do “not have the same leeway.” For instance, they may not make a knowingly false statement that “this is the best offer the opposing party will make“ or “make misleading statements about the strength or weakness of a party’s case.” Similarly, lawyer-mediators may “accurately convey“ statements from a party’s lawyer permissible for those lawyers under ABA Model Rule 4.1 (because they “are not regarded as false statements of “‘material fact’“) – but such lawyer-mediators “may not give credence to those statements if the mediator knows them to be false” |