Mediator appointed as adjudicator

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Legal and contractual solutions · Adjudication

May a mediator subsequently act as adjudicator in the same dispute?

Confidential communications, informed consent and apparent bias

The roles are not automatically compatible. A mediator commonly receives confidential, without-prejudice information from each party that cannot fairly be used, disclosed or ignored in a later adjudicative role.

Quick answer

The neutral should not ordinarily move from mediator to adjudicator without fully informed agreement and safeguards that remove any real possibility of bias

Appointment is not barred by a universal rule, but enforcement is at risk where the neutral has received private mediation communications, expressed provisional views or continued after a party objected. The objective question is whether the informed observer would identify a genuine possibility of partiality. Consent must be specific and informed, addressing confidential information and the later procedure. The safer course is to appoint a different adjudicator. If both parties request the same neutral, the protocol should be agreed before mediation begins.

IssuePosition
Private mediation caucusCreates serious later-role difficulty
Both parties give informed consentRelevant but not conclusive
One party objectsNeutral should ordinarily withdraw
Prior views expressedAssess apparent bias
Safest procedureAppoint a different adjudicator

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