How to Become a Mediator: The Ethics of Dual Roles for Lawyers
- Ivan Veenemans
- 49 minutes ago
- 5 min read
Whether you’re a lawyer in Cape Town, Bloemfontein, Johannesburg, Pietermaritzburg, Polokwane, or Port Elizabeth, becoming a mediator offers a rewarding new path in conflict resolution. Lawyers who become mediators must shift from client advocacy to neutral facilitation, avoiding conflicts of interest, maintaining strict confidentiality, and never offering legal advice during sessions. This dual role is growing rapidly across South Africa’s legal landscape, and understanding the ethics of lawyer-mediators is crucial for any legal professional considering how to become a mediator responsibly and effectively.
What Makes a Lawyer-Mediator Different from a Traditional Lawyer?
Lawyers are trained to advocate, mediators to facilitate. In legal practice, an attorney’s duty is to serve a client’s best interests – sometimes aggressively. Mediators, on the other hand, must remain neutral, guide both parties equally, and encourage compromise. The shift from adversarial to collaborative is a fundamental mindset change. A lawyer-mediator must park the instinct to push for outcomes and instead focus on helping parties arrive at their own solution. This change is both ethical and practical – the mediator’s role is not to win, but to support a fair process.
Can a Lawyer Stay Impartial While Mediating?
Impartiality is the foundation of ethical mediation. If a lawyer enters a mediation with prior ties to one party or a vested interest, neutrality is compromised. South African mediation guidelines – especially within court-annexed mediation frameworks – stress that mediators must have no bias or appearance of bias. This means lawyer-mediators must run conflict checks just as they would for new clients, and fully disclose any prior relationships or potential influence. If impartiality cannot be maintained, it is both ethical and expected that the lawyer recuses themselves.
How Does Confidentiality Work for Lawyer-Mediators?
Lawyers are used to attorney-client privilege, but in mediation, confidentiality applies differently. A lawyer-mediator hears private, sensitive information from both parties. Sharing it – even unintentionally – is a serious breach of ethics. Mediation confidentiality is protected by law, agreements, and professional codes. What is said in caucus stays in caucus. Moreover, lawyer-mediators must not use any information from the mediation in future legal work – even if the mediation fails. Confidentiality must remain absolute, or the entire process risks collapse.
Can Lawyer-Mediators Give Legal Advice During a Session?
This is one of the most common – and misunderstood – dilemmas. No, a mediator who is also a lawyer may not provide legal advice to either party during mediation. Their role is not to act as a legal representative. Instead, they must guide the process, raise awareness of possible outcomes, and encourage informed decisions. If a party needs legal advice, the ethical route is to pause the session and recommend they consult an independent attorney. Even helpful suggestions can blur the line and create liability or confusion about the mediator’s role.
What Are the Most Common Ethical Pitfalls for Lawyer-Mediators?
Some key risks include:
Conflict of interest from prior or future relationships with the parties
Role confusion, especially if one side believes the mediator is acting as their lawyer
Post-mediation representation, where a mediator later represents one party – this is unethical
Partiality in tone, language, or behaviour
Confidentiality breaches through casual sharing or poor documentation
By undergoing accredited training and following mediation-specific codes of conduct, lawyers can avoid these pitfalls. The Mediation Academy SA programmes cover these scenarios in depth and are ideal for any lawyer in Cape Town, Bloemfontein, Johannesburg, Pietermaritzburg, Polokwane, or Port Elizabeth seeking formal mediation certification.
How Can Lawyers Transition Into Mediation Ethically?
Start by committing to a neutral mindset. Ethical training helps lawyers shift from client-focused advocacy to process-focused facilitation. Clear boundary-setting at the start of each mediation – for example, explaining that you are not acting as a legal advisor – is critical. Avoid dual roles in the same matter and maintain rigorous confidentiality. Finally, keep up to date with ethical guidelines both locally and internationally. Ethics are not just rules to avoid misconduct – they’re tools for building trust in mediation.
What Global Standards Say About Lawyer-Mediators
International frameworks consistently highlight that lawyer-mediators must balance two sets of ethics — legal and mediation — without crossing professional lines.
The American Bar Association (ABA)’s Model Rule 2.4 and Formal Opinion 518 both stress that lawyer-mediators must clearly explain their neutral role and avoid giving legal advice to either party. They may share general legal information, but not direct counsel. As the ABA puts it, “A lawyer serving as a third-party neutral must inform all parties that the lawyer does not represent them.”
Across the European Union, the European Code of Conduct for Mediators outlines three core duties: confidentiality, impartiality, and independence. Mediators must disclose any prior relationships that could affect neutrality. Similarly, the International Mediation Institute (IMI) requires mediators to uphold integrity, competence, and fairness — universal ethical pillars that South African mediators follow through court-annexed and private mediation systems.
Training remains the ethical foundation of good practice. The Law Society of New South Wales notes that accredited lawyer-mediators must complete comprehensive mediation training and ongoing development to ensure neutrality and professionalism. The same principle applies globally — a skilled, trained mediator protects the public’s trust in both law and mediation.
In short, global guidance agrees: a lawyer who becomes a mediator must stay neutral, protect confidentiality, and avoid any appearance of bias. Ethics and education are what make that possible.
Voices from the Mediation Field
Justice Margaret Hinkle (USA): “It’s critical that parties never feel the mediator is giving legal advice.”
Sheera Gefen, Attorney-Mediator (New York): “When I mediate, I take off my lawyer hat. My job is to be neutral and help both sides reach compromise.”
Brett McGrath, President – Law Society of NSW: “Our accreditation scheme assures clients that lawyer-mediators are trained, accountable, and bound by enforceable ethical standards.”
International Mediation Institute (IMI): “Mediators must maintain public trust by acting with integrity, independence, and fairness.”
Together, these perspectives reaffirm that ethical awareness and formal training are non-negotiable for any lawyer entering mediation. The dual role succeeds only when neutrality, trust, and professionalism remain at its core.
Frequently Asked Questions(FAQs)
Can a lawyer mediate their own client’s case?
No. That would be a conflict of interest. A mediator must be neutral, and prior legal representation undermines this.
Is it ethical to mediate without legal training?
Yes. Legal training is not required, but for lawyers, mediation training is essential to adopt the right ethical and facilitative approach.
Can a lawyer draft an agreement after mediation?
Only with written consent from both parties and extreme care. Even then, it is safer to refer the agreement to each party’s independent lawyer.
Where can I learn more about ethical mediation practices?
Visit Mediation Academy SA for accredited training and resources tailored to lawyers in Cape Town, Johannesburg, Bloemfontein, Pietermaritzburg, Polokwane, and Port Elizabeth.
Ethics Are the Bridge Between the Two Professions
Becoming a mediator as a lawyer is not only possible – it’s a powerful way to diversify your career while contributing to South Africa’s evolving justice system. However, doing so responsibly requires a clear understanding of ethics, boundaries, and professional codes. By prioritising neutrality, confidentiality, and informed consent, legal professionals can mediate with integrity and avoid conflicts.
Become an Accredited Mediator with Confidence
Join Mediation Academy SA’s professional training programme and gain the ethical clarity and practical tools you need to thrive as a lawyer-mediator.
References
American Bar Association (ABA). 2025. Formal Opinion 518: Lawyer Serving as Third-Party Neutral. Accessed 28 October 2025.
European Commission. 2004. European Code of Conduct for Mediators. Accessed 28 October 2025.
Hill & Moin LLP. 2021. Matrimonial Law, Mediation and Marital Assets with Sheera Gefen. Accessed 28 October 2025.
JAMS (The Resolution Experts). 2024. Hon. Margaret R. Hinkle (Ret.) – Mediator Profile. Accessed 28 October 2025.
Law Society of New South Wales (NSW). 2022. Lawyer Mediators Delivering for Consumers. Accessed 28 October 2025.
International Mediation Institute (IMI). 2020. Code of Professional Conduct. Accessed 28 October 2025.
Published by: Mediation Academy SA
Date Published: 28 October 2025
© 2025 Mediation Academy SA. All rights reserved.
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