Kansas: Court Erred in Appointing a Master to Also Serve as a Mediator (Web)
March 4, 2005
On March 4th, 2005, the Kansas Court of Appeals held that a person who serves as a mediator should not be assigned to any subsequent role as a fact-finder or master in the same case, but refused to assign error where the complaining party failed to object to the dual appointment.
The Court agreed that there are perils to having a master also serve as a mediator, noting that Kansas’ Dispute Resolution Act (K.S.A. 5-501) and Domestic Mediation Act (K.S.A. 23-601) both require confidentiality of all information communicated during mediation or dispute resolution processes, subject to statutory exceptions. The court stated that mediation is generally conducted under procedural rules, agreements, or practices that communications made during the proceeding will be deemed confidential by all parties. In order for mediation to be successful, disclosures of strategic strengths and weaknesses need to be shared by the parties with the mediator so that a knowledgeable evaluation can be made in the course of trading offers and counteroffers. “When a mediator is asked to step out of this role and assume the impartial role of a master, his or her knowledge of the case would be based in part on these confidential communications, which would have the potential to taint impartiality.” Roman H. Schauf and Leona Schauf, v. Michael D. Schauf and Joann M. Schauf, 2005 WL 497133 at *8 (Kan.App., 2005). The court said that the better practice would be to avoid such a dual appointment and to preclude any person who serves as a mediator from being assigned to any subsequent role as a fact-finder or master in the same case.
Having noted the better practice, the court was unwilling to assign error, because the complaining party failed to object to the dual appointment. A review of the record revealed no objection by Appellant to the dual appointment, and the court found that “certainly an objection would have been proper at the time of the appointment, upon the start of mediation, or at trial before the master.” Id. Though the mediation was conducted pursuant to the Kansas Dispute Resolution Act, triggering confidentiality provisions, the court found there was no specific prohibition in the statute against dual service as a mediator and a fact-finder or master, and that the Act exempted persons required to report information "in order to comply with orders of a court." K.S.A. 5-512(b)(4). Finally, the court interpreted the absence of any specific objection to the dual appointment as a waiver of such confidentiality, permissible under K.S.A. 5-512(a).
In the absence of an objection to the dual appointment, the Court found that the appellants were barred from complaining of the dual appointment on appeal. “A party may not complain of rulings or matters to which he or she consented, or take advantage of any error upon appellate review which he or she invited, or in which he or she participated.” Schauf v. Schauf, 2005 WL 497133 at *8, (citing Elwood-Gladden Drainage District v. Ramsel, 206 Kan. 75, 77- 78, (1970)). The Court said “this rule is particularly true where a party objects to the dual appointment of the same person as a mediator and master for the first time after the master's report has been filed.” Id. (See also Mitchell, Trustee v. Moon, 206 Kan. at 219; Stanley v. Weston, 92 Kan. 317, 320-21, 140, (1914).)
Notwithstanding its disapproval of the dual appointment of the same person as mediator and master as not being the better practice, the Court found that the lack of a timely and specific objection required that the district court be affirmed on this issue.
The Opinion can be found at http://www.kscourts.org/kscases/ctapp/2005/20050304/91783.htm.