Lawyer-Mediator’s Subsequent Representation of Party

A Nebraska attorney served as a mediator for an unmarried couple in a child custody dispute; later, after the mediation had concluded, this same attorney represented the mother against the father in a suit involving the father’s alleged wrongful theft of certain of the mother’s property. The father sought to disqualify the attorney on the grounds of the prior mediation relationship. The Court, interpreting Nebraska law, did not disqualify the attorney. Hossaini v. Vaelizadeh, D. Neb. (August 4, 2011)

That’s Nebraska. What does Massachusetts law say?

Here, Massachusetts Rules of Professional Conduct (MRCP) 1.12 prohibit a lawyer from representing a person “in connection with a matter in which the lawyer participated personally and substantially” as a mediator “unless all parties to the proceeding consent after consultation.” The “personal and substantial” requirement is fact-specific and, in any event, it is unclear what it means.

Be thankful, then, for MCFM’s Standards of Practice which are clear and unambiguous. Standard 6 (B)(2)(a) says that a mediator “shall never represent [a] party to the mediation against any other party to the mediation in any matter whatsoever.” Even with the consent of the parties, the mediator may only act for them as an “arbitrator or case evaluator.” Note, too, that the Standard applies to “other individuals with whom the mediator is in business, such as other lawyers in a firm, or other mental health professionals in a group practice.”