{"id":941,"date":"2011-10-06T10:08:31","date_gmt":"2011-10-06T14:08:31","guid":{"rendered":"http:\/\/businessconflictmanagement.com\/blog\/?p=941"},"modified":"2011-10-06T10:08:31","modified_gmt":"2011-10-06T14:08:31","slug":"attorney-disqualification-mediation","status":"publish","type":"post","link":"http:\/\/www.businessconflictmanagement.com\/blog\/2011\/10\/attorney-disqualification-mediation\/","title":{"rendered":"Attorney Disqualification: Mediation"},"content":{"rendered":"

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.\u00a0 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.<\/p>\n

Hossaini v. Vaelizadeh<\/em>, 2011 WL 3422782 (D. Neb. Aug. 4, 2011), begins with a\u00a0paternity action\u00a0between an unmarried\u00a0father and mother that was referred to mediation pursuant to the Court Rules.\u00a0 Attorney Paul Galter was selected by the parties to mediate a dispute involving custody or parenting time.\u00a0 The mediation terminated without agreement on that issue.<\/p>\n

The parties subsequently filed competing civil actions against each other — the\u00a0father 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.\u00a0 She selected former mediator Galter to represent her in both suits.\u00a0 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.\u00a0<\/p>\n

Nebraska’s Rules of Professional Conduct provide:<\/p>\n

[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….<\/p><\/blockquote>\n

The “Nebraska Parenting Act” also provides:<\/p>\n

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.<\/p><\/blockquote>\n

The court\u00a0articulated the rationale for barring attorney mediators from subsequently representing a party to the mediation in a matter either identical\u00a0or substantially related to the mediated dispute.\u00a0 Parties to a mediation who know that a mediator might later represent the other side in a\u00a0\u00a0substantially related matter would be ill-advised to share confidential information with that mediator, thus hindering the mediation process.\u00a0<\/p>\n

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\u00a0confidentially conveyed\u00a0might be used in the subsequent dispute.\u00a0 Put otherwise, if the facts in Matter One (a roof warranty)\u00a0have nothing to do with the facts in Matter Two (an auto accident),\u00a0 the policy concerns cannot arise.\u00a0This, in turn,\u00a0supported the court’s determination that Galter’s representation of the mother in the civil cases did not violate the ethical bars at issue.<\/p>\n

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.\u00a0 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.\u00a0 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.\u00a0 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.”\u00a0 Moreover, said the court, the\u00a0father 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.<\/p>\n

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?\u00a0 Do we know to a certainty that the\u00a0father 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?\u00a0 Is the court correct in making this determination on the pleadings, and the fact that the\u00a0father did not reveal any of the confidences that he purportedly conveyed in support of his motion to disqualify?<\/p>\n

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?<\/p>\n

Mediation 101 Lesson Number 134(b):<\/em>\u00a0 After you’ve mediated a case, say bye-bye to the parties.\u00a0 For good.<\/strong><\/p>\n

\"\"<\/p>\n","protected":false},"excerpt":{"rendered":"

An attorney who acted as mediator in a parental visitation dispute is not disqualified from representing the mother in a subsequent claim for money damages against the father.<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[40,14],"tags":[39,15,33],"class_list":["post-941","post","type-post","status-publish","format-standard","hentry","category-courts","category-mediation","tag-courts","tag-mediation","tag-public-policy"],"aioseo_notices":[],"_links":{"self":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/posts\/941","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/comments?post=941"}],"version-history":[{"count":0,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/posts\/941\/revisions"}],"wp:attachment":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/media?parent=941"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/categories?post=941"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/tags?post=941"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}