What Litigators Should Expect From Their Mediator
On October 15, 2025, the American Bar Association issued Formal Opinion 518, clarifying what lawyer-mediators may — and may not — say or do under the ABA Model Rules of Professional Conduct. Although the opinion is formally directed to mediators, litigators should read it closely. It defines the ethical boundaries within which mediators must operate — and, by extension, what counsel should (and should not) expect from them.
For lawyers who regularly mediate civil disputes, this opinion is a helpful reminder that mediators are not co-counsel, not advocates, and not miracle-workers. They are, in the language of Rule 2.4, third-party neutrals — lawyers who assist two or more people “who are not clients of the lawyer” in reaching a resolution. Understanding where that line lies is critical to making the most of mediation.
The Mediator’s Role Under Rule 2.4
Rule 2.4(b) imposes two basic duties on lawyer-mediators:
They must tell unrepresented parties that the mediator does not represent them; and
If it appears that any participant misunderstands the mediator’s function, they must explain the difference between a neutral and an advocate.
For experienced counsel, this may sound obvious. Yet every mediator knows how often parties — and sometimes even lawyers — forget. When one side begins asking the mediator, “What would you do if you were me?”, the conversation has crossed into dangerous ethical territory.
Formal Opinion 518 reinforces that the mediator’s duty to clarify their role is proactive, not reactive. Unless the parties are “sophisticated consumers of mediation services,” mediators should affirmatively explain what neutrality means and what it does not mean: the mediator is not protecting anyone’s best interests, and there is no attorney-client privilege in the mediator’s communications.
Honesty and the Boundaries of Persuasion — Rule 8.4(c)
Perhaps the most striking part of the Opinion is its discussion of Rule 8.4(c), which forbids lawyers from engaging in dishonesty, fraud, deceit, or misrepresentation. That rule applies to every lawyer, whether acting as counsel or as neutral.
Here’s the key distinction:
Advocates are permitted a degree of “puffery” in negotiation — they can overstate a client’s bottom line or suggest that “this offer won’t be around tomorrow.”
Mediators, by contrast, have no such license.
Because the mediator is viewed as neutral and trustworthy, even a small exaggeration may mislead the parties and violate Rule 8.4(c).
For instance:
A mediator cannot tell a party, “This is the best offer you’ll ever get,” if the mediator knows that statement is untrue or merely a tactic to pressure acceptance.
A mediator cannot imply that the opposing side “has no case” simply to provoke movement.
And a mediator cannot “endorse” a false or inflated statement made by one side — for example, by repeating a known exaggeration with a wink or verbal emphasis that lends it credibility.
Counsel should understand these limits. When the mediator reports that “the other side views this as its final number,” that statement is exactly what it sounds like — a report of what was said, not an endorsement or prediction. Pressuring the mediator to “confirm” whether that’s really true places the neutral in an ethically precarious position.
Legal Information vs. Legal Advice — Walking the Line
Formal Opinion 518 also reminds mediators to avoid giving legal advice. They may provide legal information — such as explaining how a statute generally operates, or describing how a particular issue might be treated by a typical court — but they cannot advise either party what decision to make.
For instance:
A mediator may say: “In similar employment cases, courts often require clear proof of adverse action.”
That is legal information.But a mediator may not say: “You probably can’t win this claim; you should take the offer.”
That is legal advice, implying representation of interest and breaching neutrality.
Litigators should use this boundary to their advantage. When seeking evaluative input, ask the mediator for a range of judicial outcomes, or how a court might view both sides’ positions. Don’t ask, “Do you think we’ll win?” — that question puts the mediator in the role of counsel. A good mediator will reframe it anyway.
Practical Expectations for Counsel
Formal Opinion 518 indirectly sets expectations for litigators as well:
Respect the Neutral’s Role. Your mediator is bound by ethics rules that prohibit advocacy. Do not ask them to carry arguments to the other side as though they were your emissary.
Prepare Your Client. Before the session begins, explain that the mediator does not represent anyone. Clients sometimes assume otherwise when the mediator holds a law license.
Be Candid — Within Limits. The mediator’s credibility depends on accurate information flow. Misleading the mediator wastes opportunities for creative settlement and undermines trust.
Don’t Seek Secret Coaching. Asking, “What should I do?” or “How should I respond?” tempts the mediator to cross the Rule 2.4 line. Instead, invite the mediator’s perspective on risks or alternatives.
Avoid the “Friendly Ally” Trap. Skilled mediators may seem aligned with one side during caucus. That’s strategic empathy, not bias. Expect balance over the full course of the day.
When counsel understand these dynamics, mediation becomes more efficient — and far less frustrating for everyone involved.
Why These Rules Matter
The ABA’s message is simple: credibility is a mediator’s currency. Once a party suspects partiality or deception, the process collapses.
Formal Opinion 518 ensures that lawyer-mediators maintain the same integrity expected of judges and arbitrators. For litigators, that means recognizing that mediation is not a continuation of advocacy under another name. It is a structured negotiation led by a neutral bound by strict ethical parameters.
Those parameters serve the profession well. When mediators stay truthful and transparent, and when lawyers respect that boundary, mediation remains the most trusted form of assisted negotiation in civil practice.
The Takeaway
Formal Opinion 518 does not change the essence of mediation — but it sharpens its edges. It reminds mediators to avoid even the appearance of advocacy and reminds lawyers that the mediator’s effectiveness depends on neutrality, honesty, and clarity.
For litigators, the practical lesson is this: expect your mediator to be candid but not partisan, analytical but not advisory, empathetic but not aligned. Respect those boundaries, and you’ll get the most out of the process.
At Nationwide ADR, neutrality and integrity are not slogans — they’re the foundation of every mediation and early-resolution effort we conduct. Understanding what the ethics rules require helps all participants engage more productively, reach resolution sooner, and preserve professional trust long after the case is closed.
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