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Advisory Opinion 4
The Committee on Ethics of the Georgia Commission
on Dispute Resolution
Issued 9/11/97
The Committee on Ethics of the Georgia Commission on Dispute Resolution
has been asked to consider the following situation: A registered
mediator who is also a lawyer mediated a divorce case in which both
parties were represented and a full settlement was reached. The
divorce was finalized. Several months after the case was settled
the former wife contacted the mediator to prepare a will and do
some estate planning. She said that her ex-husband had suggested
that she call the mediator. The mediator did not accept the representation
himself, but one of his partners did accept the representation.
The mediator asks for an opinion as to how this type of situation
should be handled in the future. He specifically asks that the Committee
assume that the other party to the mediation has no knowledge of
the contact, since the fact that the former wife consulted her former
husband about this matter is probably unusual.
Issue I: Conflict of Interest
Commentary to paragraph III B on Neutrality, Appendix C to the
Supreme Court of Georgia Alternative Dispute Resolution Rules, is
as follows: " It is the Commission's recommendation that a
lawyer/mediator never accept any legal work arising out of the mediation."
The acceptance of a professional opportunity during the pendency
of the mediation or arising out of the mediation would constitute
a clear conflict of interest. The threshold question in this case
is whether this legal work arose out of the mediation. While it
did not arise out of the mediation itself, it apparently arose out
of the subject matter of the mediation since the divorce revoked
any previous will as a matter of law.
Issue 2: Solicitation
Assuming that the matter did not arise out of the subject matter
of the mediation, the next relevant inquiry would be whether the
request for professional services is made so soon after the mediation
that acceptance would give at least the appearance of impropriety.
Paragraph V on Rules of Fair Practice, Appendix C to the Supreme
Court of Georgia Alternative Dispute Resolution Rules governs referrals:
Mediators should observe the same care to be impartial in their
business dealings that they observe in the mediation session. In
this regard, mediators should not refer parties to
any entity in which they have any economic interest. As a corollary
to this principle, mediators should avoid referrals to professionals
from whom the mediator expects to receive future business. Similarly,
mediators should avoid an ongoing referral relationship with an
attorney that would interfere with that attorney's independent judgment.
It is not improper to receive referrals from attorneys or parties.
However, mediators should be aware that their impartiality or appearance
of impartiality may be compromised by referrals from parties or
attorneys for whom they act as mediators on more than one occasion.
Discussion
The Florida Mediator Qualifications Advisory Panel recently considered
a case in which a lawyer/mediator was contacted one and a half years
after a divorce mediation and asked to represent one of the parties
in the dissolution of a second marriage. The Advisory Panel concluded
that since the representation would be for a completely different
legal matter than that which was the subject of the mediation, the
mediator was permitted to accept this future work. The Panel cautioned
that the mediator must avoid solicitation prohibited by the Florida
Rules and in addition avoid any appearance of solicitation. Therefore
the length of time from the original mediation to the future representation
was an important factor to consider.. The Resolution Report
of the Florida Dispute Resolution Center, Volume 12, Number 2, June
1997
In a related case involving the potential conflict of a therapist/mediator
the Florida Panel concluded that a therapist is permitted to mediate
a divorce for a couple with whom s/he is providing marriage counseling
as long as 1) both parties request the mediation; 2) everyone understands
that the counseling role ceases once mediation is undertaken; and
3) the therapist/mediator is certain that s/he can maintain impartiality.
The Panel also concluded that the mediator could mediate for former
marriage counseling clients if 1) both parties were clients; 2)
both requested the mediation; and 3) the therapist/mediator feels
that s/he can maintain impartiality. The Resolution Report
of the Florida Dispute Resolution Center, Volume 12, Number 2, June
1997
In an opinion from The Supreme Court of Texas Professional Ethics
Committee (TX Eth. Op/ 496, November 1994) the Committee analogized
a mediator to a lawyer acting as an adjudicatory official and concluded
as follows: 1) During the pendency of the mediation the mediator
is prohibited from accepting representation in a matter either related
to or unrelated to the mediation on behalf of or adverse to a party
to the mediation. A similar bar would apply to the mediator's law
firm unless all parties agreed that the mediator's impartiality
would not be compromised. 2) After the conclusion of the mediation
neither the mediator nor anyone in his law firm could accept representation
in a matter related to the mediation unless all parties agreed after
full disclosure.
In Poly Software International, Inc. v. Su, 880 F. Supp.
1487 (D. Utah 1995), plaintiff's attorney had acted as mediator
in a case involving the same computer software in a lawsuit between
the present plaintiff and defendant, who were partners at that time,
and a computer software company. The court considered whether the
attorney should be disqualified and whether the disqualification
should extend to his law firm.
The court discussed the importance of competing policy considerations:
1) encouraging the candor of the parties by assuring that confidential
material will not be used by the mediator in a subsequent case;
and 2) defining reasons for disqualification narrowly enough to
avoid discouraging lawyers from becoming mediators. The court concluded
that the plaintiff's attorney should be disqualified and also disqualified
the attorney's law firm, holding that "[w]here a mediator has
received confidential information in the course of mediation, that
mediator should not thereafter represent anyone in connection with
the same or a substantially factually related matter unless all
parties to the mediation proceeding consent after disclosure. (Id.
at 1493).
Conclusions
Issue 1: Conflict of Interest
In the case at hand, the lawyer/mediator was asked to do legal
work that did not arise out of the mediation but did arise out of
the divorce action which was the occasion for the mediation. This
request came several months after the mediation. Both parties to
the mediation were aware of the request for representation of the
former wife by the lawyer/mediator, the former husband having apparently
suggested the representation. Although estate planning and preparation
of a will are not adversarial in nature, it is possible that estate
decision could have consequences adverse to some interests of the
former husband. Information or insights that the mediator gained
during the mediation might be used in the planning in a way that
would be disadvantageous to the interests of the former husband.
Therefore, in considering the ethical obligation of the mediator
to remain free of conflicts, the representation should not go forward
without permission of all parties.
To apply this conclusion to the lawyer/mediator's law firm is too
harsh, however. The Rules and Regulations of the State Bar of Georgia,
Standard 38, provides that if a lawyer is disqualified from serving
a client because of a conflict of interest, the law firm of the
lawyer is disqualified as well. This is because knowledge that a
lawyer possesses is imputed to the members of his or her law firm
as well. The same rule should not be applied to a mediator. The
mediator is pledged to secrecy about all aspects of the mediation,
not only client confidences.
Issue 2: Solicitation
Having discussed the question as a potential conflict of interest
question, we turn to a consideration of the matter under the Rules
of Fair Practice of Appendix C. Does the fact that the request for
legal representation followed the actual mediation within several
months raise an issue of the propriety of accepting future business
so close in time to the date of the mediation?
We conclude that it does not. However, mediators should be sensitive
to the fact that future business referrals too close in time to
a mediation could cause an appearance of improper solicitation.
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