How Might ABA Opinion 518 Impact California Mediation Practice?

The ABA Standing Committee on Ethics and Professional Responsibility issued Opinion 518 on October 15, 2025 to provide guidance on avoiding misleading communication by mediators. The Opinion distinguishes the mediator’s and advocate’s roles. Attorneys in negotiations puff all the time. Under Opinion 518, mediators are not supposed to puff, make misleading statements, or give a party legal advice as to what is in their best interest. That’s the way we read the Opinion.

Lawyer-mediators must avoid misleading communications because parties reasonably view neutrals as truthful, authoritative figures. The opinion emphasizes disclosure, role clarity, and constraints on evaluative persuasion.

COMMENT. California mediators are often evaluative. The line between evaluating, which is legitimate under Opinion 518, and offering legal advice and a suggestion as to what is in a party’s best interest is often blurred. Under Opinion 518, does a mediator say to a party: “Have you considered whether this move is in your best interest?” rather than, “It is in your best interest . . .” Does the first framing pass muster, while the second does not? What persuasive strategic moves are proper to take under Opinion 518? Can mediators poke but not pull?

Does the confidentiality protection California law provides to the mediation process de facto shield a mediator from liability if the mediator puffs, makes a strategic misrepresentation, or offers legal advice?

And what can the mediator, who is not a lawyer, say in mediation?

Perhaps by the time California has its mediation certification program, we’ll all get to study the implications of ABA Opinion 518.