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Attorney Disqualification: Mediation

Business Conflict Blog by Peter Phillips

A recent U.S. District Court opinion has tested the ethical rules barring mediators from representing a party in a subsequent matter that is “identical” or “substantially related” to the mediated matter. It found that, at least in the case before the court, that test had not been satisfied and the mediator/attorney was permitted to continue to represent the client.

Hossaini v. Vaelizadeh, 2011 WL 3422782 (D. Neb. Aug. 4, 2011), begins with a paternity action between an unmarried father and mother that was referred to mediation pursuant to the Court Rules. Attorney Paul Galter was selected by the parties to mediate a dispute involving custody or parenting time. The mediation terminated without agreement on that issue.

The parties subsequently filed competing civil actions against each other — the father sought return of cash and property from the mother, and the mother sought damages allegedly suffered as a result of having been “solicited and induced” to “start a personal relationship” with the father. She selected former mediator Galter to represent her in both suits. The father moved to disqualify Galter on the ground that his service as mediator in the custody dispute barred his representation in these subsequent disputes.

Nebraska’s Rules of Professional Conduct provide:

[A] lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as… an arbitrator, mediator or other third-party neutral….

The “Nebraska Parenting Act” also provides:

No mediator who is also a licensed attorney may, after completion of the mediation process, represent either party in the role of attorney in the same matter through subsequent legal proceedings.

The court articulated the rationale for barring attorney mediators from subsequently representing a party to the mediation in a matter either identical or substantially related to the mediated dispute. Parties to a mediation who know that a mediator might later represent the other side in a substantially related matter would be ill-advised to share confidential information with that mediator, thus hindering the mediation process.

The court noted that these policy considerations shed light on the interpretation of the statutory and regulatory language: The risk arises in any instance where the facts that may be confidentially conveyed might be used in the subsequent dispute. Put otherwise, if the facts in Matter One (a roof warranty) have nothing to do with the facts in Matter Two (an auto accident), the policy concerns cannot arise. This, in turn, supported the court’s determination that Galter’s representation of the mother in the civil cases did not violate the ethical bars at issue.

In the custody and parental visitation mediation, reasoned the court, Galter may have learned of facts involving how often and under what conditions the father could visit the child. By contrast, the facts implicated in the subsequent cases involve the circumstances in which gifts and property were conveyed and monetary damages arising from the actions of the parties. While Galter would be disqualified from representing the mother in the custody action, his is not disqualified from representing her in the civil damages cases. Indeed, the court observed, “a careful comparison of the facts and legal theories between the two cases indicate[s] that they have little in common except for the fact that [the mother and the father] are involved in both.” Moreover, said the court, the father did not identify the nature of the confidences conveyed during the mediation, and thus failed to meet his burden of proof that Galter’s service would be prejudicial.

Is the court correct in determining, as a matter of fact and law, that mediator Galter possesses no confidential information that he could use against the father? Do we know to a certainty that the father did not relate to the mediator how the mother came upon the contested property, or the reasons why he thought it in the child’s best interest for him to have visitation rights? Is the court correct in making this determination on the pleadings, and the fact that the father did not reveal any of the confidences that he purportedly conveyed in support of his motion to disqualify?

In order to prevail in such a motion, must the aggrieved party reveal the confidential communications, in contravention of the very policy purported to be advanced by the rules?

Mediation 101 Lesson Number 134(b): After you’ve mediated a case, say bye-bye to the parties. For good.

                        author

F. Peter Phillips

F. Peter Phillips is a commercial arbitrator and mediator with substantial experience providing consultation on the management of business disputes to companies around the globe. A cum laude graduate of Dartmouth College and a magna cum laude graduate of New York Law School, Mr. Phillips served for nearly ten years… MORE >

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