To be or not to be: (Counsel to a former mediation participant)

William G. Gilbride

You successfully mediated a complex and emotional discrimination lawsuit against a major employer.  Now, you have been asked to represent the employer in a new lawsuit alleging a similar pattern of discrimination.  Can you undertake the representation?  Should you?

In some cases, litigants or counsel may choose a mediator because of that person’s subject matter expertise.  Frequently, we find business lawyers are selected to mediate business cases, employment lawyers are selected to mediate employment cases, and intellectual property lawyers are selected to mediate intellectual property cases.  Lawyers and law firms become known for their subject matter expertise and those lawyers with mediation training and experience may also be desirable to serve as legal counsel when legal matters arise within their area of expertise. 

So, what happens if a lawyer selected to mediate a case is subsequently contacted by a party or a person closely related to a party to serve as legal counsel?  Let’s look at the Michigan Rules of Professional Conduct (“MRPC”) for guidance.

The issue of whether a lawyer who mediated a case may later represent one of the parties to the mediation in a different matter often arises in the form of a motion to disqualify the attorney filed by the opposing party when it is discovered that the attorney previously served as a mediator in a case involving one or more of the parties at issue. 

Attorney disqualification is a severe remedy under Michigan case law because it requires denying a party the right to counsel of its choice [citations omitted].  The courts are reluctant to disqualify attorneys because of the severe consequences of disqualification [citations omitted].  Given the strong public policy in favor of allowing clients to select their lawyers, disqualification of a former mediator should only be based upon express prohibition language in the MRPCs. 

MRPC 1.12 addresses disqualification of a lawyer who has previously served as a “judge or other adjudicative officer.”  On its face, MRPC section 1.12(a) does not apply to a lawyer’s previous service as a mediator, only to service as a judge or “adjudicative officer.”  Additionally, in the language of MRPC Rule 1.12, its prohibitions are limited to an adjudicative officer’s subsequent representation of a party in “the matter” i.e., in the same matter in which the Judge or adjudicative officer served.  Thus, when analyzing whether a lawyer who has served in a facilitative mediation capacity can later be engaged by a party involved in the mediation, MRPC 1.12 does not appear to prohibit the subsequent engagement. 

Similarly, nothing in MRPC 1.9 (including provisions 1.7 and 1.8) prohibit a mediator from later serving as legal counsel because a mediator is not deemed to have “represented a client.”  MRPC 1.12, by its express terms, applies only to conflicts arising out of Rules 1.7, 1.8(c) and 1.9(e) or 2.2.  Because when a lawyer serves as a mediator there is no attorney/client relationship created between the mediator and the parties, none of the professional conduct rules for attorneys applicable to clients or former clients can be invoked to prohibit a lawyer from subsequently representing a party, so long as it is not in “the [same] matter.” 

It is also commonplace and a good practice for lawyers who serve as mediators to enter into an agreement regarding their services.  Those agreements typically contain several provisions which leave open the possibility of the mediator later serving as legal counsel.  For example, mediation agreement provisions often provide:

“The parties and their counsel acknowledge and agree that in the mediator’s capacity as mediator neither he nor any member of his law firm of which the mediator is a member are acting as an attorney or advocate for any party in connection with the mediation.” 

The above provision makes clear that engaging the mediator does not create attorney/client relationship as contemplated by MRPC 1.7, 1.8 or 1.9.  Facilitation agreements generally also provide that the parties to the mediation agree that “no conflict of interest has been or will be deemed to exist in any matter in which the law firm has represented in the past or may represent in the future interests that may be adverse to the parties or their counsel in the mediation, and neither the mediator nor the law firm shall be disqualified in any such matter by virtue of the mediator providing mediation services.”

Contractual provisions such as those outlined above conform to the requirements of the MRPC and provide a basis for the mediator to later serve as legal counsel for a party so long as it does not arise out of “the [same] matter.”

There has been some debate as to whether it was an oversight by the Michigan Supreme Court to not include the word “mediator” along with the language in MRPC 1.12 involving “judges and other adjudicated officers.”  However, standard rules of statutory construction suggest that had the Michigan Supreme Court intended to treat in MRPC 1.12 mediators the same as the rule treats judges and adjudicative officers, the Supreme Court would have expressly included the word “mediator” in the definitions.  On the other hand, MCR 2.411 has something to contribute to the discussion and the Michigan Standards of Conduct for Mediators address this issue head on.

MCR 2.411(B)(5) states:  “The rule for disqualification of a mediator is the same as that provided in MCR 2.003 for the disqualification of a judge.  The mediator must promptly disclose any potential basis for disqualification.”  MCR 2.003 provides several bases for disqualification of a judge from hearing a matter, including “(d) The judge has been consulted or employed as an attorney in the matter in controversy.”  So, an attorney employed by a party would be disqualified from serving as a mediator in a dispute involving that party.  But that does not address the former mediator now being hired to represent a party.

Article III(G) of the Michigan Standards of Conduct for Mediators provides:

G.  In considering whether establishing a personal or another professional relationship with any of the participants after the conclusion of the mediation process might create a perceived or actual conflict of interest, the mediator should consider factors such as time elapsed since the mediation, consent of the parties, the nature of the relationship established, and services offered.

While this provision does not provide a definitive answer to the initial question, it does provide some factors for mediators to consider when addressing the second question:  should they represent a former mediation party.

As in all such matters, lawyers conducting mediations are counseled to carefully analyze the MRPC before accepting a subsequent engagement as counsel from a party which previously participated in a mediation to assure it is not a prohibited engagement.

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William D. Gilbride Jr. is Of Counsel to the Detroit based law firm of Abbott Nicholson. He is a former shareholder and chair of the firm’s litigation section. He is a member of PREMi (https://premiadr.com), the American Board of Trial Advocates, and the National Association of Distinguished Neutrals and is a commercial panelist for the American Arbitration Association.