After parties have invested trust in a lawyer-mediator, they frequently ask him or her to provide an opinion on the probable outcome of a court case or the fairness of a proposed settlement. Mediating parties who have come to trust the lawyer-mediator as a confidant and an authority on legal matters may be influenced by the lawyer-mediator’s evaluation of the dispute. Depending on the circumstances, a duty comparable to that of an attorney’s obligation to a client may be implied from the act of giving legal advice.
This article argues that a lawyer-mediator who ventures into the realm of predictive evaluation may be held to a legal opinion standard on any opinions he or she may offer as to the state of the law and/or the likely outcome of litigation between the parties.
Lawyer-mediators who accept the parties’ invitation to evaluate the merits of a dispute after having received confidential information but without having invested the same degree of research and factual exploration as would be required to support a formal legal opinion risk being sued for malpractice.