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A Requirement Without Consequence? Federal Circuit Mediator Conflict Disclosure Case

by Michael Moffitt
July 2014

ADR Prof Blog by Andrea Schneider, Michael Moffitt, Sarah Cole,Art Hinshaw, Jill Gross and Cynthia Alkon.

Michael Moffitt

The Federal Circuit recently handed down its decision in the CEATS v. Continental case. If I were teaching Mediation this year, I’d spend some real time on it.

Quick summary (oversimplifying for purposes of clarity here): Mediator appointed to patent case. Case didn’t wind up settling, and it proceeded to trial. After jury verdict, losing party discovered that the mediator had a prior relationship with the prevailing party. Losing party seeks FRCP 60(b) relief. Court says, “Yes, mediator should have disclosed the relationship, but no, relief from judgment is not available.”

Lots in there worthy of time and consideration. How did the court come to cite and apply things like the Model Standards of Conduct to this mediator? What, if any, consequences could there be for failure to disclose? (Private liability, as I’ve written previously, here, unlikely to be successful.) If the presence of a subsequent jury trial stands as evidence of a cure of any alleged prior mediator misconduct, what incentives does that create within mediation? Does the conflict rule applied to judges and arbitrators make sense for mediators? Etc.

Biography


Michael Moffitt is the Dean for University of Oregon School of Law, Orlando J. and Marian H. Hollis Professor of Law, and Associate Director, ADR Center. 

Before joining the Oregon law faculty in 2001, Michael Moffitt served as the clinical supervisor for the mediation program at Harvard Law School and taught negotiation at Harvard Law School and at the Ohio State University College of Law. Following a federal judicial clerkship, he spent several years with Conflict Management Group, consulting on negotiation and dispute resolution projects around the world. Professor Moffitt has published more than twenty scholarly articles on mediation, negotiation, and civil procedure. He co-edited The Handbook of Dispute Resolution (Jossey-Bass, 2005), an award-winning compilation of 31 original chapters by leading scholars and practitioners in the field. He also co-authored the innovative, student-focused book, Dispute Resolution: Examples & Explanations (Aspen 2008). The Provost of the University of Oregon named Professor Moffitt in the first group of recipients of a five-year award from the Oregon Fund for Faculty Excellence. The Oregon law school faculty awarded Professor Moffitt with the law school's Orlando J. Hollis Faculty Teaching Award. He is also the recipient of the University's Ersted Award for Distinguished Teaching. He is a devoted but mediocre snowboarder, an aggressive tennis player, and an avid wine taster. He spends most of his energy in a futile effort to keep up with his daughters.



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