May a Mediator Meet Separately With One Side After Mediation?

Procedural posture and result

Advisory-opinion request concerning whether a mediator may meet separately with one party and counsel after a completed family mediation and final judgment, what may be discussed during that meeting, whether the contact creates a conflict of interest, and whether the mediator may later serve again for the same parties.

What happened and what the authority decided

A mediator conducted a family-law mediation that resulted in a signed marital settlement agreement. The agreement was submitted to the court, and a final judgment was subsequently entered.

Four months later, counsel for one party asked the mediator to meet with the attorney and client to revisit the negotiations so the attorney could emphasize the value of the settlement compared with what might have occurred in court.

The Mediator Ethics Advisory Committee concluded that the mediation had ended when the parties signed the settlement agreement and that no rule categorically prohibited the mediator from meeting with one party after mediation. The mediator could reiterate prior negotiations, provided no confidential communications, including confidential caucus communications, were disclosed and the mediator's integrity and impartiality were not compromised.

The committee further stated that the mediator could remind the party of the self-determination exercised in reaching the agreement but could not offer an opinion about how favorable the settlement was, predict what the outcome might have been in court, or speculate about how a judge would have ruled.

MEAC also found no categorical rule preventing the mediator from serving again in a later post-judgment mediation involving the same parties, provided the mediator remained neutral and impartial.

What this tells the mediator

Ethical obligations do not necessarily end when the mediation session concludes. A mediator considering post-mediation contact with only one side should protect confidential communications, maintain neutrality and impartiality, avoid evaluating the merits or quality of the settlement, and consider whether the contact could affect the mediator’s ability to serve neutrally in the future.

Practical guidance

• Ask why the meeting is requested and whether it serves a legitimate neutral purpose.
• Do not disclose communications from the other side or a private caucus.
• Consider inviting all parties or obtaining written consent when appropriate.
• Avoid evaluating whether one side received a good or bad deal.
• Reassess conflicts and perceived bias before accepting any later appointment.