Mediator Summoned to Give Evidence at Trial Regarding Mediation
This article is definitely worth a read. Both parties agreed to waive the confidentiality agreement during a court proceeding but the mediator still refused to provide a witness statement.Clause 6 of the Agree to Mediate Contract stated the following:
* all communications at and relating to the mediation would be without prejudice;
* all information produced for the mediation (or arising in relation thereto) would be kept confidential;
* all documents produced for the mediation (or arising in relation thereto) would be privileged and would not be admissible as evidence or discoverable in litigation or arbitration connected with the dispute (as defined); and
* none of the parties to the mediation agreement would call the mediator as a witness in litigation or arbitration in relation to the dispute, nor would the mediator voluntarily act in any such capacity without the written agreement of all parties.
Despite that, the judge had this to say:
The judge dismissed the application and held that the mediator should give evidence in response to the witness summons. In reaching his decision, he considered at length the legal and academic authorities on confidentiality and privilege in mediations.
So what would you do if you were in this situation? What's the point of a confidentiality agreement? Has anyone been in a similar situation?Read the rest of the article [here].
The judge does give a detailed response for his ordering the mediator to sit in the witness stand and it is listed in the article.
Jeff Thompson, Ph.D., is a professor at Lipscomb University, researcher, mediator, and trainer. He is also involved in crisis and hostage negotiation as well as a law enforcement detective. His research includes law enforcement crisis and hostage negotiation in terrorist incidents. He received his doctorate from Griffith University Law School having researched the impact nonverbal communication has in conflict situations with respect to developing rapport, building trust, and displaying professionalism.
Dr. Thompson has presented and trained on the topic of conflict, mediation, (crisis and hostage) negotiation, communication and nonverbal communication internationally for a variety of audiences including police personnel, government officials, judges, attorneys, physicians, sales people, business professionals, and both graduate and undergraduate students. He has also been published in numerous professional and academic publications.
He is the co-chair of ACR's national Crisis Negotiation Section, and he is an ad-hoc reviewer for multiple academic journals. He received his MS in Negotiation and Dispute Resolution from the Werner Institute, Creighton University School of Law.
(All posts by Jeff Thompson represent his personal reflections and opinions and not that of any organization.)