A mediator with a national practice and decades of litigation experience, Bruce Friedman often contributes his thoughts on the Alternative Dispute Resolution process to well-respected legal publications. In this Law360.com article, Bruce addresses the confusion among lawyers and mediators over conflict-of-interest and disclosure requirements applicable to mediators in California.
“Lawyers and mediators must know and comply with the rules applicable to each mediation. Lawyers should not simply rely on the mediator to disclose conflicts and relationships but should make an inquiry during the course of the mediator-selection process. Cases may come from all of the federal courts, and each may have its own twist on disclosure and conflict-of-interest rules. Mediators with a national practice must make sure that they comply with the rules of the state and court presiding over the case.
In my opinion, the most prudent and best practice is to comply with these rules in all mediations in order to protect the integrity of the mediator and the mediation process. The rules boil down to disclosing to counsel for the parties anything that a mediator believes may impact upon the perception of neutrality and impartiality.This doesn’t mean that a mediator needs to go as far as to meet arbitrator disclosure requirements (which include disclosure of all past arbitrations conducted for the parties or their counsel), but certainly, current representation of a party in mediation or past representation of a party with respect to a similar case should be disclosed … The current hodgepodge of court rules, model rules and statutes makes compliance complicated and often leaves mediators and counsel in a quandary as to what is required.”
To read the rest of the article on Law360.com, please click here.
