Written by attorneys · grounded in primary & secondary sources — see below
A neutral individual who conducts a mediation by facilitating communication and negotiation between disputing parties to assist them in reaching a voluntary agreement.
Select any source to read its text and confirm it supports the definition.
Maya Malik, a sitting state judge, agreed to mediate a contract dispute between two local businesses outside her courtroom duties. The parties later challenged her participation. The arrangement violated judicial conduct rules because no statute expressly authorized the judge to serve as mediator apart from official responsibilities.
Michael Miller served as mediator in a commercial dispute between Monarch Pharmaceuticals and a supplier. Months later Miller's law firm was asked to represent the supplier in related litigation. The firm could not proceed without written informed consent from all parties because Miller had participated personally and substantially as mediator.
Ming Ma, a lawyer, was retained by two companies to help resolve a supply-chain disagreement. Ma explained to both sides that she was not representing either party and was serving only as a third-party neutral. The explanation satisfied the requirement that unrepresented parties understand the lawyer's limited role in the mediation.
The Department of Justice referred its monopolization case against Marathon Logistics to mediation before a sitting federal appellate judge. After four months of sessions the parties failed to reach agreement. The case proceeded to briefing and judgment because the mediation did not produce a settlement.
After a district court found the state had not negotiated in good faith, the Seminole Tribe and Florida each submitted proposed gaming compacts to a court-appointed mediator. The mediator selected the compact that best complied with federal law and submitted it to the parties for consent. The process followed the statutory mechanism for resolving failed compact negotiations.
The state Milk Control Board convened producers and dealers to resolve a pricing controversy under its statutory authority. The board acted as mediator by hearing positions and proposing terms that both sides could accept. The mediation produced an agreed order that the board later enforced as a regulation.
A mediation communication is any statement, whether oral or in a record, that occurs during a mediation or is made for purposes of considering, conducting, participating in, initiating, continuing, or reconvening a mediation or retaining a mediator. The privilege protects these communications from disclosure in later proceedings unless waived or subject to an exception.
A judge may not act as a mediator apart from official duties unless expressly authorized by law. The prohibition prevents judges from performing extrajudicial dispute-resolution functions that could compromise judicial impartiality or create conflicts with official responsibilities.
…political power as between the states and the central government. We are not discharging the basic function of this Court as the mediator of powers within the federal system. To strike down a law like this is to deny a power to all government. The whole Court is conscious that this case reaches ultimate questions of judicial…
…If no compact has been concluded 60 days after the court's order, then "the Indian tribe and the State shall each submit to a mediator
…Richard A. Posner, Chief Judge of the United States Court of Appeals for the Seventh Circuit, was appointed to serve as mediator
…law, the public service law, the state sanitary code, and local health ordinances and regulations; to act as arbitrator or mediator
A lawyer may not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a mediator unless all parties give informed consent confirmed in writing. The rule protects the integrity of the mediation process and prevents misuse of confidential information obtained during the mediation.
A lawyer serving as a third-party neutral must inform unrepresented parties that the lawyer is not representing them. When the lawyer knows or reasonably should know that a party does not understand the lawyer's role, the lawyer must explain the difference between the neutral's role and the role of a lawyer who represents a client.
No. Statements made during compromise negotiations, including those in mediation, are inadmissible to prove liability or the amount of a claim. The exclusion applies even when the statement would otherwise qualify as a party admission because the policy favoring settlement confidentiality controls.