search
Articles

When mediating, consider the jurisdiction that will be ruling on issues pertaining to the mediation as different jurisdictions have different expectations of what mediator confidentiality means.

Missouri case law and Missouri Supreme Court Rules provide that mediation confidentiality shall be strongly protected. Supreme Court Rule 17.05(b) provides the court shall only be advised by the parties that they “�were successful in resolving their dispute or that issues remain open and unresolved.” In the case of Kenny vs. Emge, 972 SW2d 616 (Mo. App. E.D.1998), the Court held that a mediator should not be called to testify on anything relating to the mediation with the court relying on RsMo. 435.014 (1997). The court indicated that the application of Supreme Court Rule 17 would bring the same result.

Contrast Emge with the case of Olam vs. Congress Mortgage Co., 68 F. Supp3d 110 (N.D.Cal 1999) which involved a district court ordered referral to mediation. After a settlement was reached, plaintiff attempted to avoid the settlement, claiming that it was unconscionable, and that she was incapable of giving legally viable consent as a result of undue influence. In subsequent proceedings, plaintiff waived the mediation privilege and defendant agreed to a limited waiver of the mediation privilege. The District Court Judge compelled testimony of the mediator and called the mediator after the other participants testified, in closed proceedings, under seal.

In its order requiring testimony of the mediator, the court applied a balancing test that compared the interests that might be threatened and the interests that might be advanced by requiring the mediator to testify under seal. The court concluded that the mediator’s testimony was crucial to making a just decision.

So where does this all leave counsel? Know your jurisdiction and its attitude toward confidentiality. (See the next Best Practice Tip for information on the USDC, E.D. MO. view of “confidentiality” vs. “good faith”).


Back to newsletters