May 7, 1996
A lawyer who has served as a mediator under MCR 2.403 may not later serve as an arbitrator in an arbitration proceeding between the same parties concerning the matter which was mediated.
Whether a lawyer who has served as a mediator in a private mediation setting may serve as an arbitrator in a proceedings between the same parties concerning the matter which was mediated depends upon the rules of the private mediation forum and the arbitration forum.
References: MRPC 1.12(a) and (d), 8.4(c); RI-235, RI-260; MCR 2.003(B)(1); MCR 2.403(A), (D) and (E).
The Committee has been asked whether a lawyer who has served as a mediator in a private mediation process or under MCR 2.403 may later serve as an arbitrator in an arbitration proceeding between the same parties concerning the matter which was mediated.
There is some authority addressing whether a decision-maker in an alternate dispute resolution forum may subsequently serve as advocate for one of the parties in the same or a related matter. MRPC 1.12(d) permits an arbitrator selected as a partisan of a party in a multimember arbitration panel to subsequently represent that party, but an arbitration decision is binding on the parties. In RI-235, we discussed whether a partisan mediator may subsequently represent a party on a substantially related matter, and concluded that a partisan mediator would not be permitted to do so unless all parties consented.
In RI-260, we concluded that a lawyer who was appointed by the court as a special master and who issued findings and recommendations in a property settlement may not subsequently represent one of the original parties in a subsequent legal malpractice action against that party's lawyer in the original matter, where the two matters are substantially related.
Whether a mediator may subsequently serve as arbitrator, i.e., a sort of "appellate adjudicator" in the same matter is a question of first impression. MCR 2.403(A), (D) and (E) state in pertinent part:
"(A) Scope and Applicability of Rule
"(1) A court may submit to mediation any civil action in which the relief sought is primarily money damages or division of property. However, MCR 3.211 governs mediation of domestic relations actions.
"(2) Mediation of tort cases is mandatory beginning with actions filed after [October 1, 1986]; however, the court may except an action from mediation on motion for good cause shown if it finds that mediation of that action would be inappropriate."
". . .
"(D) Mediation Panel.
"(1) Except in mediation [in medical malpractice matters], mediation panels shall be composed of 3 persons.
"(2) The procedure for selecting mediation panels must be provided by local administrative order, and may set minimum qualifications for mediators.
"(3) 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.
"(E) Disqualification of Mediators. The rule for disqualification of a mediator is the same as that provided in MCR 2.003 for the disqualification of a judge."
With regard to mediation instituted under MCR 2.403, therefore, the local court must provide for selection of panels by administrative order, judges selected as mediators may not subsequently try the matter, and mediators are subject to the same disqualification rules as judges.
MCR 2.003(B) states in pertinent part:
"A judge is disqualified when the judge cannot impartially hear a case, including but not limited to instances in which:
"(1) The judge is personally biased or prejudiced for or against a party or attorney.
"(2) The judge has personal knowledge of disputed evidentiary facts concerning the proceeding.
"(3) The judge has been consulted or employed as an attorney in the matter in controversy."
MCR 2.003(D) states:
"If it appears that there may be grounds for disqualification, the judge may ask the parties and their lawyers to consider, out of the presence of the judge, whether to waive disqualification. If, following disclosure of any basis for disqualification other than personal bias or prejudice concerning a party, the parties without participation by the judge, all agree that the judge should not be disqualified, and the judge is then willing to participate, the judge may participate in the proceedings. The agreement shall be in writing or placed on the record."
Thus, a mediator under MCR 2.403 would be disqualified if the mediator has personal bias or prejudice concerning a party or attorney. These same factors apply to any judge who may be called upon to hear the matter after mediation. It would therefore be incongruous for an arbitrator for the same matter to be held to a different standard than the mediator and the judge. MRPC 1.12 holds former judges and former arbitrators to the same standard regarding their participation as advocates in subsequent proceedings involving the same matter. We see no reason for the lawyer serving as arbitrator to be treated differently, or held to a lower standard, than the lawyer was held as mediator or to which a judge would be held. The careful structuring of the mediation process as established under MCR 2.403 would be sacrificed if the provisions intended to ensure impartial decision-making could be circumvented by taking the matter to an arbitration forum and allowing an individual who participated as mediator to function as arbitrator. MRPC 8.4(c) cautions lawyers against conduct prejudicial to the administration of justice.
If a mediator has already participated in the rendering of a mediation decision, it is not unreasonable for one of the parties to conclude that the mediator's decision is fixed and "biased" under the meaning of MCR 2.003(B)(1). The remittal procedure in MCR 2.003, which requires consent of all parties, is not available if the judge would be disqualified for bias. A lawyer who has served as a mediator under MCR 2.403 may not later serve as an arbitrator in an arbitration proceeding between the same parties concerning the matter which was mediated.
A different result is reached in a private mediation setting. Private mediation forums set their own operating rules, eligibility requirements, etc. Unless the rules of the original private mediation setting or the rules of the subsequent arbitration forum limit the eligibility of those who may serve as arbitrators, there is no restriction. Such rules may address conflicts of interest, challenges by the participants, facts relating to specific prior participation, etc.