Sometimes an attorney serves as intermediary
Typically, an attorney’s job is to passionately and persuasively advocate for a client. On rare occasions, the attorney may act as an intermediary or a third-party neutral. When acting as such, the attorney has to remain fair and objective to all involved parties.
In Nevada, an attorney may act as intermediary between clients if each client consents to the common representation with the understanding of the advantages and risks involved and the effect of such representation on the attorney’s duty of confidentiality. Further, the attorney must reasonably believe that the matter can be resolved in both clients’ best interests and if there is no resolution, then neither client would be prejudiced. Lastly, the attorney must reasonably believe that each client can be represented impartially. The attorney should always consult with each client regarding the decisions to be made and each client must make an adequately informed decision. If any of those conditions are no longer met, the attorney must withdraw immediately and cannot represent either of the clients in the matter that was the subject of the intermediation.
The rules are different when an attorney serves as a third-party neutral; therefore, assists in reaching a resolution of a dispute or other matter that has arisen between two or more persons who are not clients. As a third-party neutral, depending on the process that is selected by parties or ordered by court, an attorney may serve as an arbitrator, a mediator, or in any capacity that would enable the attorney to assist the parties to resolve the dispute.
In a neutral evaluation proceeding, parties present facts, evidence, and the law applicable to their case to a third-party neutral evaluator. Following the review of the available information and evidence, the evaluator provides an assessment of the strengths and weaknesses of the case to all parties. Typically, the evaluations are non-binding and intended to facilitate settlement but with the agreement of the parties the third-party evaluator may provide a report or a recommendation. Sometimes, if the parties agree, the third-party neutral evaluator may also assist with other aspects of the case such as discovery planning.
The unique character of an attorney’s typical role as their client’s representative may lead to the confusion of that attorney’s role as an advocate for their client with the function of a third-party neutral. Therefore, the attorney serving as a third-party neutral must inform unrepresented parties that the attorney is not representing them. A simple explanation may be sufficient for the parties experienced in mediation or arbitration. However, an unexperienced first-time participant may be easily confused. Thus, it is vital that the attorney explains the difference between the attorney’s role as a third-party neutral and as an advocate for their client.
Sometimes, an attorney may be asked to later represent one of the parties as counsel in the same matter. Such representation would likely be barred by the conflict of interest rules, as previously acting as a third-party neutral, the attorney would have become privy to confidential information.
When serving as a third-party neutral, an attorney may be bound not only by the rules specific to the function performed, but also by various ethical rules, applicable law, and court orders. Most importantly, the attorney has a duty to remain fair and impartial toward all involved participants.
Natalia Vander Laan is a Minden attorney practicing estate planning, family law, and workers’ compensation.