§ 25-2938.Mediator's disclosure of conflicts of interest; background.

Section 25-2938 puts the burden of surfacing conflicts on the mediator, before the mediator ever picks up the case. Before accepting a mediation, a prospective mediator must make an inquiry reasonable under the circumstances into whether any known facts, a financial or personal stake in the outcome, or an existing or past relationship with a party or a foreseeable participant, would lead a reasonable person to question the mediator’s impartiality. Whatever that inquiry turns up has to be disclosed to the mediation parties as soon as practical, before the mediator accepts the case.

The duty does not end once the mediation starts. If the mediator later learns of a disqualifying fact, the mediator has to disclose it as soon as practicable rather than sit on it. The mediator also has to disclose the mediator’s own qualifications to handle the particular dispute, even though the act, in a separate provision, does not require any mediator to hold a specific background or professional credential.

The section backs the inquiry and disclosure duties with a real consequence: a mediator who violates the pre-acceptance inquiry duty, the later-discovered-fact duty, or the general impartiality requirement is precluded from asserting the privilege under section 25-2933; a violation of the separate qualifications-disclosure duty does not carry that same consequence. Impartiality itself is the default rule, not an aspiration; a mediator must be impartial unless the parties, after receiving the required disclosures, agree otherwise. Judges acting as mediators are carved out of the inquiry, disclosure of conflicts, disclosure of qualifications, and impartiality duties alike; none of those four requirements applies to an individual acting as a judge.