Sandy Bacharach, Portland OR 03/06/12
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.
Jay , Newark OH 03/05/12
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.
Ivan K. Stevenson, Torrance CA email@example.com 02/23/12
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.
Jon , Charleston SC firstname.lastname@example.org 02/23/12
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.
Jan Schau, Encino Ca Jfschau@adrservices.org 02/23/12
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.
Rachel Green, Brooklyn NY Rachel@mediate2resolution.com 02/22/12
Michael, thanks for writing this summary of your experiences. It sounds to me as if you - as a mediator, so sensitive and attuned to the reasons for and complexities of mediator confidentiality - assumed that others in the court system would understand these reasons and complexities - and yet it sounds as if none of them did. A good warning - perhaps - in the same position - I would send an attorney to represent me - and not go to court at all. I had had language requiring participants to pay me for time and costs defending, or appearing, if either calls me as a witness.
Michael , Sarasota FL 02/22/12
In reply to the questions posed by Anju Jessani, I had little time to organize support from any professional groups to which I belong. I'm certain it would have been helpful to have others in court to assert the importance of protecting confidentiality.
Like many of our clients, this couple, in the midst of trying to resolve a complicated set of issues, were at times sharply conflicted, but not in a way I hadn't experienced countless times over the years. Although this is a superb question for all of us to consider, I will decline to say more in this public forum in order to preserve what's left of client confidentiality.
Anju Jessani, Hoboken NJ email@example.com 02/22/12
Subpoena - Confidentiality
Michael, I was sorry that you were put in this position. Would your state mediation organization have been willing to file amicus, supporting not testifying? Did you consider not answering certain questions? In retrospect, was there anything about this case that raised a red flag early on, that one or both parties, were not good candidates for mediation? What would you have done differently? Thank you for sharing your experience.