Mediator - Subpoenaed?


by Michael Lang

February 2012

Michael Lang

“Mr. Lang, my name is Chris Adams.  I am a process server and have some papers for you.”  With as much calm as I could muster, I asked, “what sort of papers?”  He replied, “a subpoena.”  And with that simple telephone conversation, the story begins.

I was puzzled and curious.  A day later, I met Chris Adams, took the subpoena, and learned that I was ordered to testify 5 days later at a hearing on a motion to enforce a temporary agreement reached three months earlier in the course of a divorce mediation.

The temporary agreement dealt with interim financial matters requiring several sessions to structure the intricate details of their plan.  Within a month after completing this agreement, one party retained a new lawyer who advised that mediation should be terminated.  And, on this lawyer's advice, the client refused to fulfill the terms of the interim agreement.

That same day I contacted the attorney who had issued the subpoena.  I patiently and calmly explained my reasons for refusing to t testify.  The attorney apologized for putting me in this situation, said she realized I would be upset by the subpoena, and offered to provide case law to support her contention that I could be required to testify in a situation where one of the parties claimed the agreement had been entered into under duress.  The attorney quickly assured me that the duress did not involve me as mediator.  I pointed to the Mediation Confidentiality and Privilege Act (F.S. 44-401-406), that provides, in relevant part:

Section 405 — Confidentiality; privilege; exceptions.
 (1):   ..... , all mediation communications shall be confidential. A mediation participant shall not disclose a mediation communication to a person other than another mediation participant or a participant's counsel.
(2)  A mediation party has a privilege to refuse to testify and to prevent any other person from testifying in a subsequent proceeding regarding mediation communications.
(6)  A party that discloses or makes a representation about a privileged mediation communication waives that privilege, but only to the extent necessary for the other party to respond to the disclosure or representation.

Undeterred by my argument, the attorney insisted that because the other party had alleged duress or coercion, the provisions of subsection 6 were applicable.  Because the other party had broken confidentiality, the attorney asserted, no mediation party was bound by confidentiality—at least with respect to the issue of duress.  I countered this view and insisted that (a) this was a matter between the parties, not involving me; (b) the statute does not contemplate the testimony by a mediator in such matters, only the party affected by the representation; (c) the essential principle of confidentiality in mediation would be undermined if mediators could be compelled to testify any time one party complained about the terms of an agreement; (d) there was no allegation that I participated in or necessarily observed the alleged duress; and (e) the couple had signed an Agreement to Mediate in which they specifically agreed that “...they will not call the mediator to testify concerning the mediation or to provide any materials from the mediation in any court proceeding between the parties.”  Apologizing once more for “putting me through this,” the attorney reaffirmed her belief that my testimony could be compelled.  Assuming this legal argument would prevail, and that confidentiality no longer obtained, the attorney asked several questions about the interim agreement and the methods by which it had been developed.  Without the pleasantries customary among fellow professionals, I declined to answer any of her questions.

I filed an objection with the court, appending the Mediation and Confidentiality Act, the Agreement to Mediate signed by the parties, and the provision in the Standards of Practice for Florida Mediators regarding confidentiality.

I assumed—correctly—that the other party would object to my offering any testimony.  I phoned her the day before the hearing.  She expressed a position similar to my own and promised to express her objection to the the judge.  Oddly, and immediately following this statement, the attorney asked a series of questions about my role in the mediation generally and specifically with respect to negotiations for the interim agreement.  She asked pointedly whether her client had been bullied into signing the agreement.  Without being unduly rude, I noted the inherent contradiction of, on the one hand asserting I should not be required to testify, and on the other hand asking questions that would require me to breach confidentiality.  I declined to answer her questions, and our conversation ended

On the afternoon of the hearing, and before the attorneys presented their opening statements, I requested an opportunity to present my objections.  The judge agreed, but surprisingly insisted that I first be sworn, as if I were already a witness rather than arguing a point of law.  I looked in the direction of the attorney who had assured me her client would object to my testimony.  I expected some reaction, some effort to support my point of view.  She remained seated and mute.  In that moment, I realized, I stood alone; I did not have an ally who would affirm my position and join her client’s opposition to my own.  Her behavior was inexplicable.

I referred the judge to the objection I had filed several days earlier, and insisted I had the right, based on the long-standing (and statutorily confirmed) principle of mediator confidentiality, to decline to testify.   After a few moments, the judge asked me to continue my statement from the witness stand.  He asked a number “preliminary questions,” as did the attorney asserting the exception to mediator confidentiality.  , such as, "Did you act as a mediator for these parties?"  "Are you familiar with the temporary agreement?" "Did you assist the parties in creating the agreement?"  I answered these questions, then repeated my objections.

I cited the relevant statutory authority, and argued that the facts in a case cited to support breaking confidentiality were not at all similar to the facts of the case before the court.  And, I pointed to a provision in the Agreement to Mediate in which the parties expressly agreed they would never require my participation in a court matter. 

His questions and comments suggested the Judge was at best unmoved by my arguments and at worst uninterested in the principle of mediator confidentiality. Instead, he seemed to be weighing whether I could be a useful witness, whether my testimony might be useful and relevant to the issues in dispute—not whether a mediator's testimony was legally permitted.

Believing I had nothing to lose by being even more insistent, even to the point of interrupting the Judge, I emphasized that by requiting my testimony he would not only be contradicting state law and established mediation principles, but he would be sending a message to every attorney, as well as to mediation clients, that mediator confidentiality could be compromised with a mere suggestion of duress.  I repeated, to the point of being tiresome that mediation is valued because the parties are assured of confidentiality.  Ordering me to testify would undermine the parties' confidence in mediation.  Exasperated at the lack of concern from the judge and the other attorney's unwillingness to join in my defense of confidentiality, I asked the judge: should mediators be treated differently from other practitioners, such as attorneys, physicians, mental health professionals who all have, and zealously guard, a privilege against breaching a client’s confidences?

The judge listened, politely, then asked whether I had ever been called to testify, I said no.  He replied, "Well, once in 30 years isn't so bad."  In the end, all that mattered were “the facts.”

Because the testimony of other witnesses would precede mine, I was sequestered. I sat in the corridor outside the courtroom, waiting for my unwanted and unwelcome opportunity to testify.  I assumed, wrongly as it turned out, that I would be shown some professional courtesy, and allowed to testify without a long wait.  After 3-1/2 hours I was recalled to the witness stand, reminded I was under oath, and questioned in turn by each attorney.

I was an honest, if unhelpful witness.  I confirmed my role, the number of times I had met with the parties, and indicated that the provisions of the temporary agreement were discussed during several sessions. I gave simple, unembellished responses to the attorneys’ questions.  When asked whether one party coerced the other or acted like a bully, I responded that it was not my place to characterize the parties’ mental states. I was astonished that neither of the attorneys asked basic questions about my observations, or what the parties may have said during our meetings.  I waited for one of the two lawyers to ask questions such as:

  • Were you present when the interim agreement was being discussed and its
    terms agreed to; and if so, what was the attitude of each party?
  • During the discussions of the interim agreement, were the parties speaking
    through you or directly to one another?
  • Did you have private communications with either party, and if so, did either party
    express concerns about the interim agreement?
  • Did either party express reservations about the agreement, ask for a delay, or            otherwise indicate anything other than consent?
  • Did the parties have an opportunity to consult an attorney before consenting to
    the terms of the temporary agreement?

I thought: you have an eye-witness, why aren’t you asking questions that would help the court determine what happened?  I was on the witness stand less than 10 minutes.  I can’t imagine my testimony had any bearing on the judge’s decision.

I was frustrated, troubled and angry.  I was frustrated that I had been required to appear in court and then to wait for nearly 4 hours, to violate a principle I have vigilantly protected for more than 30 years.  I was troubled that neither the judge nor the attorneys seemed to understand the consequences of compromising the principle of mediator confidentiality.  And, finally, I was fuming because, in the end, the questions asked did not produce evidence that, in my judgment, might have aided the court.

Understandably, this experience prompted a number of questions.  Setting my personal reactions aside, is this incident is merely an isolated event that will ultimately have little affect on mediation practice generally and the protection of mediator confidentiality?  Does the reaction of the lawyers and the Judge signal a shift away from that principle?   Are mediators viewed as agents of the court, who upon request will provide insights, information and analysis to help judges determine facts and render decisions?  Does my experience suggest that the applicable standard is: the end justifies the means?  Should the search for ‘truth” trump the well-recognized principle of mediator confidentiality?  In my own situation, and for other mediators, does this incident suggest we have not adequately educated other professionals about our role, responsibilities, objectives and approach?  How do we protect the mediation process from being degraded or compromised by those who may not understand the importance of confidentiality in mediation?  Clearly, in my case, the statutory protection, and the language in the Agreement to Mediate were insufficient.

As if being required to testify for 10 minutes after waiting nearly 4 hours wasn't sufficiently insulting, the party who required my testimony has refused to pay for my time, asserting that I was merely an evidentiary witness not unlike the person who happens to be witness to an automobile accident or crime. In reaction to these events, I have modified the language of my Agreement to Mediate.  The language in the previous version seemed clear and specific.

The parties further acknowledge that the mediation is being conducted
according to Florida Law (44.406, Florida Statutes) and understand they
may not call the mediator to testify concerning the mediation or to provide
any materials from the mediation in any court proceeding between the parties.

The new language stresses confidentiality and expressly requires the party who seeks my testimony to pay for my services.
The parties further acknowledge that the mediation is being conducted
according to Florida Law (44.406, Florida Statutes) and all communications
are considered to be confidential.  The parties will not, under any circum-
stances, seek the mediator's testimony concerning the mediation or to provide
any materials from the mediation in any court proceeding between the parties.
The parties agree that in the event either of them attempts to compel the
mediator's testimony in a court proceeding, that party will be responsible
for and shall pay the mediator's costs in defending such an attempt, and
shall pay the for all time incurred by the mediator in preparing for and
participating in any court proceeding at the hourly rate noted below.

Before this frustrating experience, I had never considered whether the language in my Agreement to Mediate offered sufficient protection against a wanton disregard for the principle of mediator confidentiality.  The language served me well for a long time.  And, as the judge noted, once in 30 years isn't so bad.

I would be interested to hear from practitioners with experiences similar to mine or those who have dealt with similar problems, especially those who have taken a different approach and those for whom the result may have been different.



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Biography




Michael Lang has been mediating family, commercial, public policy and organizational disputes since 1978. He is the founding director of the Master of Arts Program in Conflict Resolution, a former President and Board member of the Academy of Family Mediators, and Editor-in-Chief of Mediation Quarterly.

Email Author
Website: www.mediate.com/michaellang

Additional articles by Michael Lang



Comments



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 Sandy Bacharach,   Portland OR    03/06/12 
 So sorry! 
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I do not have experience with these issues, but my mouth was agape as I read. I'm so sorry you had to go through that. The whole court experience sounds awful, very disrespectful. Thank you for sharing.
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 Jay ,   Newark OH    03/05/12 
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Based on the statutory language cited in the article, it appears as if only the parties hold a privilege in the author's state. Under the Uniform Mediation Act (UMA) passed in some states including mine in Ohio, the mediator also holds a privilege. Thus, even if the parties wave the privelige, the mediator may still assert his or her own privilege as mediator and refuse to testify, minus the exceptions outlined in UMA. The UMA may provide stronger provisions than a state with a weak or no privilege statute. Perhaps lobbing for passage of the UMA in these states would help.
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 Ivan K. Stevenson,   Torrance CA  stevenson@mediate.com      02/23/12 
 Mediator Subpenas 
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I have fought long and hard in California to prevent exactly what happened to you. I am often called upon by mediators in California that have been faced with your dilemma. I recommend that they fight the subpena under the provisions of the law. In every instance either the mediator has been able to extricate themselves citing the law I have provided or I have stepped in and represented the mediator and had the subpenas quashed both on a state and federal level. Confidentiality is only as strong as you are willing to fight to make it so. Sorry you got trapped in the situation, but maybe your mediation community ought to ban together to fight these type of events.
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 Jon ,   Charleston SC  jla@p-tw.com      02/23/12 
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I recently received a subpoena for a mediation that I conducted and I struggle with the same issues. I will revise my mediation agreement resemble yours. Thanks for your comments.
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 Jan Schau,   Encino Ca  Jfschau@adrservices.org      02/23/12 
 Mediator subpoena 
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Michael: I feel your pain. Years ago I was asked to testify in a motion for attorneys fees on a matter which went to trial, but the jury awarded less than they would have paid at a mediation before me. The defense was claiming the fees weren't justifiable, since they should have accepted the early offer. I have malpractice insurance through complete equity, and they hired a lawyer to bring a motion to quash. The parties didn't want to deal with that and proceeded without me.
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