§ 172.209.Conflict of Interest

A conflict rule that follows from what a conciliator learns.

The bar covers three roles — appointment as an arbitrator, taking part in an arbitration, and taking part in a judicial proceeding in the same dispute.

The reason is the confidences. A conciliator hears each side’s private position, including what it would accept, and that knowledge cannot be unlearned by someone who later decides the case.

Confidentiality reinforces it. Section 172.206 makes what was said in the conciliation inadmissible, and a decision-maker who heard it directly would render that protection meaningless.

Consent of each party lifts the bar. Parties who value the conciliator’s familiarity with the dispute may agree to it.

The governing rules can also displace it. The section applies except as provided by rules adopted for the conciliation or arbitration.

Some legal traditions treat the roles as compatible, and the exception leaves room for parties who choose those rules.

The default runs the other way for a reason. A party asked to speak candidly needs to know the listener will not be judging the case later.

Section 172.117 shows the compatible arrangement — a tribunal may use conciliation with the parties’ agreement, which is a choice the parties make knowingly.