May a mediator subsequently act as adjudicator in the same dispute?
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.
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.
| Issue | Position |
|---|---|
| Private mediation caucus | Creates serious later-role difficulty |
| Both parties give informed consent | Relevant but not conclusive |
| One party objects | Neutral should ordinarily withdraw |
| Prior views expressed | Assess apparent bias |
| Safest procedure | Appoint a different adjudicator |
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