A Requirement Without Consequence? Federal Circuit Mediator Conflict Disclosure Case

ADR Prof Blog by Andrea Schneider, Michael Moffitt, Sarah Cole,Art Hinshaw, Jill Gross and Cynthia Alkon.

The Federal Circuit recently handed down its decision in the CEATS v. Continental case. If I were teaching Mediation this year, I’d spend some real time on it.

Quick summary (oversimplifying for purposes of clarity here): Mediator appointed to patent case. Case didn’t wind up settling, and it proceeded to trial. After jury verdict, losing party discovered that the mediator had a prior relationship with the prevailing party. Losing party seeks FRCP 60(b) relief. Court says, “Yes, mediator should have disclosed the relationship, but no, relief from judgment is not available.”

Lots in there worthy of time and consideration. How did the court come to cite and apply things like the Model Standards of Conduct to this mediator? What, if any, consequences could there be for failure to disclose? (Private liability, as I’ve written previously, here, unlikely to be successful.) If the presence of a subsequent jury trial stands as evidence of a cure of any alleged prior mediator misconduct, what incentives does that create within mediation? Does the conflict rule applied to judges and arbitrators make sense for mediators? Etc.

                       

Michael Moffitt

Michael Moffitt is the Dean for University of Oregon School of Law, Orlando J. and Marian H. Hollis Professor of Law, and Associate Director, ADR Center.  Before joining the Oregon law faculty in 2001, Michael Moffitt served as the clinical supervisor for the mediation program at Harvard Law School and taught negotiation at… MORE >