MUST A MEDIATOR DISCLOSE A LAW FIRM’S PRIOR CONSULTATION WITH A PARTY?

Procedural posture and result

Advisory-opinion request concerning disclosure when someone at the mediator’s firm previously consulted with a mediation participant. RESULT: The committee found no automatic clear conflict on the facts, but required prompt disclosure. The parties could waive the potential conflict if they agreed and the mediator could remain impartial.

What happened and what the authority decided

A member of the mediator’s law firm had previously consulted with a party in a different matter, although the mediator had no contact with that person and the firm did not undertake representation.

The committee found no automatic clear conflict on the facts, but required prompt disclosure. The parties could waive the potential conflict if they agreed and the mediator could remain impartial.

What this tells the mediator

Conflicts analysis extends beyond the individual mediator. Even limited firm contacts may reasonably matter to the parties’ selection of a neutral.

Practical guidance

• Include firm-wide consultations and representations in conflict screening.
• Disclose the nature of the contact without revealing protected client information.
• Make disclosure as soon as practicable.
• Obtain express agreement before proceeding.
• Withdraw if the relationship actually impairs or reasonably appears to impair impartiality.