What constitutes “substantially related” issues where mediator wishes to represent a party in a subsequent dispute?

I just came across a case involving an ethics issue in mediation that I found interesting. Although the issue does not arise frequently, courts have considered whether a mediator can serve as a representative for one of the mediation parties in a subsequent dispute. The resolution often turns on the question whether the disputes are “substantially related”. Imagine a mediator in a child custody dispute is asked to represent the wife in a subsequent suit in which she seeks damages for certain items, which were not returned to her, as well as for her suffering stemming from the inducement to participate in a personal relationship. Are the custody dispute and subsequent law suits “substantially related” so that the mediator should not be allowed to represent the wife in the subsequent suit? A federal court in Nebraska found that these disputes were not substantially related because the husband, who claimed that he revealed confidential information to the mediator during the custody mediation, could not say how the information could be used to his disadvantage during the litigation. According to the court, that the two disputes had little in common was essential to the finding that they were neither the same nor substantially related. Hossaini v. Vaelizadeh, 2011 WL 3422782 (D. Neb. 2011).

2 thoughts on “What constitutes “substantially related” issues where mediator wishes to represent a party in a subsequent dispute?”

  1. I recently answered a question in Professor Schnieder’s ADR class regarding a similar topic. Becuase mediation in WI is mandated by the court it is essential that the process retains its impartiality. Parties must have confidence in the system for the mediator to do his job well, why risk the process??

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