Attorney Disqualification: Mediation

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.

  1. I’m the attorney who represented Adel Vaelizadeh in the US District Court action in the Lincoln Division.

    This ruling by the magistrate was a real head-scratcher to be sure.

    First off, it has to be noted that Mr. Galter is a well-known fixture in the Lincoln legal community and is considered one of the emeritus mediators in the area. He’s been in practice something like 60 years now, and at the time he was enjoying his twilight years practicing law. I do not know where he is at now, or if he continues to practice law.

    That said, his services as a mediator were employed by the parties with respect to BOTH the paternity action AND child support issues. So he had in-depth knowledge of the parties’ finances.

    What struck me as ironic was that the Magistrate, rather than order a hearing and take testimony in-camera about the information conveyed to Galter, her ruling implies that one has to disclose the confidential communications made during the mediation, to the mediator, in caucus, before he can be disqualified. We believed, strongly so, that the forced disclosure violated the mediation statute and NE Supreme Court rules with respect to absolute privilege of confidentiality of mediation caucuses.

    As a lawyer and a mediator, I was just thoroughly shocked by this, entirely shocked.

    My firm practices all over the country, we’ve litigated cases everywhere. My principal licensure is in California and I mediate cases in Georgia and engaged in ADR in California. The proprietor of my firm litigates extensively in Florida and California and collectively we’ve litigated cases in a dozen states.

    Never once have we seen a situation where a mediator represented parties in one case, and then took up representation in a related matter between the same parties. There is a paucity of cases out there to begin with. It was a strain just to find the cases cited by the Magistrate with disapproval I might add.

    But there comes a point and time where it becomes cost-ineffective to object to a magistrate ruling, then have to appeal a District Court’s rubber stamp.

    With that said, the Magistrate left open other issues, in that had Galter proceeded and he indeed used financial information he received during mediation caucus, he would likely have been disqualified at that point.

    Our case terminated, happily, upon a dismissal with prejudice by Ms. Hossaini (this was a removal from state court by the way) thereby letting Mr. Vaelizadeh’s judgment against Ms. Hossaini stand as of that date. Therefore we never got to the ultimate issues regarding the merits of Ms. Hossaini’s case or Mr. Galter’s knowledge of the mediated facts.

    I feel, in parting, that the magistrate’s ruling was simply her trying to protect Mr. Galter’s reputation and at the same time drawing the case back to its underlying merits. It was a subtle maneuver but unfortunately as can be seen (as it has been published), has made for what I think is very bad precedent.

    I think in the future Mr. Galter may heed your advice about saying “bye-bye” to the parties once mediation is concluded. That is the fairest and honestly best advice you could’ve given.

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