OPINION 496
August 1994

Statement of Facts

Plaintiffs sued Defendant. During the course of the lengthy litigation the trial judge ordered mediation pursuant to the alternative dispute resolution statute, contained in Tex.Civ.Prac. & Rem.Code 154.001, et seq. (hereinafter the "ADR Statute")). The parties mutually selected the mediator and compensated the mediator for his services over two days of mediation. Both parties divulged confidential information to the mediator regarding their respective positions to facilitate settlement. The mediation was successful and the case settled. At the termination of the mediation, the mediator was no longer involved in the dispute.

Subsequent to the mediation, a third party, which was not a party to the original lawsuit, hired the mediator's law firm to advise it regarding an action against Defendant. The mediator would not be personally involved in any matter in the subsequent representation. The facts and issues involved in the representation of the third party in the second action by the mediator's law firm are similar to those involved in the settled lawsuit. The mediator maintains the confidentiality of communications received by him during the course of the mediation relating to the subject matter of the litigation and does not share the information with other lawyers in his firm.

Questions Presented

  1. During the pendency of the mediation, may the mediator or his firm ethically accept a representation on behalf of or adverse to a party to the mediation in a matter related or unrelated to the mediation?
  2. After the conclusion of the mediation through settlement or declaration of impasse by the mediator, may the mediator or his firm ethically accept a representation on behalf of or adverse to a party to the mediation in a matter unrelated to the mediation?
  3. After the conclusion of the mediation process through settlement or declaration of impasse, may the mediator or his firm ethically accept representation on behalf of or adverse to a party to the mediation in a matter related to the mediation?
  4. May any potential conflicts of interest deriving from the mediator's services be waived by the parties in advance of the mediation?

Discussion

Mediation is an alternative dispute resolution procedure in which an impartial third person, through facilitating communication between the parties, promotes reconciliation, settlement or understanding among them. (154.023 and 154.073 ADR Statute). Critical to the success of the mediation process is the open nature of the communications and the confidentiality of all matters occurring during the mediation.

It is the mediator's obligation to "encourage and assist the parties in reaching a settlement of their dispute." (154.053(a), id.). Such participation by the mediator implements public policy that encourages voluntary resolution of disputes and early settlement of litigation.

For the purpose of this opinion this committee identifies a mediator as an "adjudicatory official" as that term is defined in Terminology, Texas Disciplinary Rules of Professional Conduct (Disciplinary Rules). An adjudicatory official is "a person who serves on a Tribunal." A tribunal is defined in the Disciplinary Rules as "any governmental body or official or any other person engaged in a process of resolving a particular dispute or controversy." The term "tribunal" "includes ... mediators ... and comparable persons empowered to resolve or to recommend a resolution of a particular matter."

Rule 1.11 of the Disciplinary Rules reads in pertinent part:

  1. A lawyer shall not represent anyone in connection with a matter in which the lawyer has passed upon the merits or otherwise participated personally and substantially as an adjudicatory official ... unless all parties to the proceeding consent after disclosure....

[b] If paragraph (a) is applicable no other lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter unless:

    1. the lawyer who is subject to paragraph (a) is screened from participation in the matter and is apportioned no part of the fee thereupon; and
    2. written notice is promptly given to the other parties to the proceeding.

This committee is without precedent to answer the questions presented. It is the opinion of this committee that a mediator, acting as an impartial third party in a dispute is obligated to adhere to Rule 1.11. The rule addresses the obligations of a lawyer acting as an adjudicatory official and is not limited to lawyers occupying appointed/elected judicial positions.

The facts presented in question one are remote, but the answer is uncomplicated. During the course of the mediation, the mediator would be prohibited from undertaking representation on behalf of or adverse to a party to the mediation in a matter related to or unrelated to the mediation since an unavoidable conflict of interest would arise given the mediator's concurrent roles as impartial third party and as advocate for or against a party to the mediation. The option available to the mediator's law firm would be decided by the agreement or not of the parties that the representation contemplated would compromise the impartiality of the mediator.

The matters presented in questions two and three may be answered by the application of Rule 1.11 to the facts. Subsequent representation on behalf of or adverse to a party to the mediation by the mediator in a matter related to the subject matter of the mediation would be prohibited "unless all parties to the proceeding consent after disclosure" (Rule 1.11(a)).

The mediator's law firm may not undertake representation on behalf of or adverse to a party to the mediation in a postmediation proceeding involving a matter related to the mediation without first complying with Rule 1.11(c).

Concerning matters unrelated to the mediation and the subject of a post-mediation proceeding this Committee does not decide that undertaking representation on behalf of or adverse to a party to the mediation falls within the intent and scope of Rule 1.11.

Resolution of question four is not found in the Disciplinary Rules and this committee declines to speculate as to the relative rights and obligations of the parties concerning the waiver of any potential conflict of interest prior to the mediation.

Conclusion

A mediator is an adjudicatory official as that term is discussed in Disciplinary Rule 1.11. As such, during the pendency of a mediation the mediator would be prohibited from ethically undertaking representation on behalf or adverse to a party to the mediation in a matter related to or unrelated to the mediation. Likewise, the same bar would apply to the mediator's law firm unless the parties to the mediation agreed that such representation would not compromise the impartiality of the mediator. Absent such agreement, the law firm must decline or withdraw from the representation.

Post-mediation representation by the mediator or the mediator's law firm on behalf of or adverse to a party to the mediation in a matter related to the mediation is addressed in Rule 1.11. Such representation would be prohibited unless the exceptions allowed in Rule 1.11(a) and 1.11(c) are operative.

Rule 1.11 does not address post-mediation representation by the mediator or the mediator's law firm on behalf of or adverse to a party to the mediation in a matter unrelated to the mediation and, thus, the inquiry made falls outside the scope of the rule.

This committee declines to speculate as to the relative rights and obligations of the parties regarding pre-mediation waiver of potential conflicts of interest.