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Mere involvement in unrelated litigation against a separate state government entity does not disqualify a mediator from participation in dispute resolution involving state employees unless actual or potential bias is clearly shown, according to a federal district court in Georgia.
In Sklar v. Clough, No. 1:06-CV-0627-JOF, 2007 WL 3407533 (N.D. Ga. Oct. 30, 2007), the defendants, which included administrators of a Georgia public university, petitioned the Court to remove a previously-appointed mediator. The defendants alleged that the mediator's participation in unrelated litigation against the State of Georgia, including a petition for attorney's fees, would bias the mediator in favor of awarding attorney's fees to the plaintiffs in the instant case.
The Court refused to remove the mediator, holding that the defendants had failed to show that any potential bias would impede resolution of the dispute between the parties.
In reaching its holding, the Court noted that special masters and mediators are often selected from practicing attorneys with expertise in and exposure to a certain field of law, and that disqualification of a special master or mediator "is a matter for the exercise of discretion by the district judge, unless actual bias has been demonstrated."
According to the Court, "a court-appointed mediator has none of the powers that come with the appointment of a special master" that would justify applying a more stringent bias standard for mediators than special masters. Therefore, since the defendants had failed to show actual or potential bias on the part of the mediator – which is the standard applied to special masters – the Court refused to remove the mediator based merely on his involvement in an unrelated case against another state government entity.
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