July 18, 1985
A lawyer-mediator may not later represent a client in the same case in which the lawyer served as mediator.
References: MCPR DR 5-105; Op 95; CI-171, CI-966; MCR 2.403(D)(3) and (E).
A lawyer served as plaintiff mediator on a three-lawyer mediation panel in circuit court. The mediators reviewed the plaintiff and defense summaries and heard counsel presentations; there were no individual conferences with counsel and no other sources of information about the case. Plaintiff's counsel in the subject litigation has now asked Plaintiff's mediator to become co-counsel in the case, and to handle the trial of the matter. The lawyer/mediator asks whether it is ethical to participate as counsel at trial of the matter mediated.
Although there are no previous ethical opinions dealing with mediators, it is clear that mediators serve in a quasi-judicial capacity. Cf., MCR 2.403(E), "The Rule for disqualification of a mediator is the same as that provided in MCR 2.003 for the disqualification of a judge." Thus rules regulating the disqualification of judges are applicable to mediators.
Most directly, the court rules limit a judge's role, once that individual has served as a mediator. MCR 2.403(D)(3) states:
"A judge may be selected as a member of a mediation panel, but may not preside at the trial of any action in which he or she served as a mediator."
Certainly, the arguments raised by the instant inquirer apply equally to a judge, inasmuch as the trial judge participates in a manner more analogous to that of a mediator. The judge's previous knowledge of the case, just as the lawyer's comes only from the formal mediation processes.
Although the court rules do not address the specific question of whether judges, and thus, lawyer-mediators, may represent one of the parties to the litigation mediated, earlier ethics opinions proscribe such activity in other contexts.
Thus, a lawyer who is a justice of the peace cannot accept a retainer or represent any person in any case where that lawyer has previously acted in an official capacity [Op 95]. A lawyer who served as a special court commissioner in a condemnation proceeding may not represent an interested party in those proceedings in a subsequent civil action concerning the same subject matter [CI-171]. A lawyer who is a magistrate cannot represent any person in any case in which that lawyer previously acted in an official capacity [CI-966].
The rationale of these opinions permits extending them to lawyer-mediators. The action of a mediator is not merely mechanical, but requires the exercise of certain discretion. Because the mediator acts in a quasi-judicial capacity, the mediator in effect represents the people. Thus, when a lawyer is at the same time a mediator, a conflict of interest is apt to arise between duty toward the public and toward some client. While a lawyer may represent conflicting interests, after receivable express consent of the parties given after full disclosure of the facts, MCPR DR 5-105, this exception does not apply in any case where the lawyer occupies a public office. "Public Consent cannot be obtained and can never be presumed." Opinion 95.
Thus, a lawyer-mediator may not later represent a client in the same case in which the lawyer served as a mediator.