The Court of Appeals for the Federal Circuit has held that “mediators have disclosure obligations which are similar to the recusal requirements imposed on judges.” This is so despite the acknowledgement that mediators have no authority whatsoever over the parties they are assisting, and despite the fact that a bad mediator can cause very little harm.

The dispute giving rise to this peculiar result is Ceats, Inc., v. Continental Airlines Inc., a patent dispute brought before the District Court for the Eastern District of Texas and appealed to the Federal Circuit. The claimant sought review of a denial of its motion pursuant to F.R.C.P. 60(b) for relief from a judgment that its patents were invalid. The basis for that motion had been that the court-appointed mediator had failed to disclose his close business and professional relationship with counsel for the defendants. This nondisclosure was also the basis for a state court’s vacating an arbitration award issued by the same neutral (in an unrelated proceeding) in which he had failed to disclose that same relationship.

The Court of Appeals “recognize[d] that mediators perform different functions than judges and arbitrators,” but also noted that “mediators still serve a vital role in our litigation process.”

Because parties arguably have a more intimate relationship with mediators than with judges, it is critical that potential mediators not project any reasonable hint of bias or partiality. Indeed, all mediation standards require the mediator to disclose any facts or circumstances that even reasonably create a presumption of bias.

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