Mediator Testifying as Witness?! A New Appellate Opinion on Mediation Confidentiality

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From Shriner v. Friedman Law Offices Opinion

By: Donald L. Swanson

Here’s something you don’t see every day: an appellate opinion on mediation confidentiality.  It allows a mediator to testify about what happened in the mediation.

The opinion is a week old — dated April 12, 2016 — and is published here.  The case is Shriner v. Friedman Law Offices, 23 Neb. App. 869, ___ N.W.2d ___ (2016).  It involves a mediation settlement of a personal injury claim.  The plaintiff then sues her lawyer for malpractice in wrongfully advising and pressuring her to accept the settlement.

In the malpractice case, Defendant takes the mediator’s deposition about what happened in the mediation.

Both Plaintiff and Defendant then file motions for summary judgment in the malpractice case.  Defendant offers the mediator’s deposition testimony as evidence.  Plaintiff opposes such evidence as privileged under Nebraska’s Uniform Mediation Act (Neb. Rev. Stat. § 25-2930 et seq).

The court then grants Defendant’s motion for summary judgment and overrules Plaintiff’s.  The court references the mediator’s testimony in its written opinion but does not directly address Plaintiff’s objection to such evidence.  Plaintiff appeals.

The Nebraska Court of Appeals, in its opinion cited above, reverses the grant of summary judgment for Defendant and sustains the denial of Plaintiff’s motion.

The Court of Appeals addresses the mediator’s testimony as follows (the mediator’s name is Miller):

The Uniform Mediation Act . . . establishes a privilege for mediation communications, which generally are not subject to discovery or admissible in evidence in a proceeding.  Under the act, mediation communications are privileged unless an exception applies; the privilege is waived; or a person is precluded from asserting the privilege. Shriner and Friedman do not dispute that Miller’s deposition testimony recounted “[m]ediation communication[s]” as defined by the act, or that this action qualifies as a “[p]roceeding” as defined by the act. Likewise, there is no dispute that Shriner, as a mediation party, is permitted to prevent any other person from disclosing a mediation communication.

In response to Shriner’s contention that Miller’s testimony is privileged, Friedman argues the testimony falls within the exception, which provides:

There is no privilege for a mediation communication that is:  . . . sought or offered to prove or disprove a claim . . . of professional misconduct or malpractice . . . based on conduct occurring during a mediation.

. . .

We agree with Friedman that Miller’s deposition testimony falls within the [malpractice exception]. In her amended complaint, Shriner alleged that during the mediation, Friedman advised her to accept the $45,000 settlement offer. She further alleged Friedman told her that if she did not accept the settlement offer, Friedman would no longer advance litigation costs for her case. According to Shriner, although she was indigent and informed Friedman that she desired to take the case to trial, Friedman persisted, demanding that she either accept the offer or pay the costs necessary to proceed to trial. Shriner alleged that she “relented under the pressure and duress and ‘told . . . Friedman, in anger, that if that’s all [she] had to get, that’s what [she]’d have to get.’” Based upon these allegations, Shriner alleged that Friedman breached the applicable standard of care by demanding that she pay litigation costs to proceed to trial and by advising her to accept the settlement offer.

Miller’s deposition testimony consisted primarily of a description of his interaction with Shriner and Friedman during the mediation with respect to the $45,000 settlement offer. Miller observed that Shriner and Friedman were both disappointed with the offer. Miller recalled that Friedman advised Shriner “there was a real chance that they could get less than [$45,000] if they tried the case” and recalled that it was Friedman’s opinion Shriner should accept the offer. Miller also recalled that Friedman told Shriner she would have to pay the costs of the physicians’ depositions if she wished to proceed to trial. Miller testified that Shriner left the conference room and made a telephone call, then returned and said she would accept the offer. According to Miller, she was not happy but affirmatively agreed to accept the settlement offer.

Miller’s testimony is relevant to disproving “a claim or complaint of professional misconduct or malpractice filed against a . . . representative of a party based on conduct occurring during a mediation.” Specifically, Friedman seeks to use Miller’s testimony to disprove Shriner’s allegations that Friedman committed legal malpractice by coercing her into accepting the settlement offer and by improperly advising her during the mediation. Therefore, Miller’s testimony falls within the [malpractice exception]. If Miller’s testimony is offered on remand, caution will be required, since only the portion of a mediation communication necessary for the application of the exception may be admitted.

Shriner further argues that Miller’s testimony lacked foundation and was prejudicial. The applicability of these evidentiary objections will depend upon Miller’s specific testimony on remand, so we decline to address them.

23 Neb. App. at 893-96, statute citations are omitted.

So . . . what do you all think about this?

VIEW COMMENTS BELOW AND LINKEDIN REPONSES

5 thoughts on “Mediator Testifying as Witness?! A New Appellate Opinion on Mediation Confidentiality

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  1. “Don –

    I read the opinion last week and have been mulling it over.

    If you read the UMA carefully, there is an exception for mediation privilege in cases of legal malpractice stemming from conduct occurring in the mediation. There is an exception that a mediator may not be compelled to testify in cases of legal malpractice. 25-2935(c).

    My question is this – is the mediator voluntarily giving testimony? If so, then the statute appears to permit it. If not, then the lower court should not let this testimony in (and should not have allowed the deposition of the mediator in the first place).”

    Kristen M. Blankley Assistant Professor of Law University of Nebraska College of Law

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    1. Kristen, as a mediator I take Confidentiality to its ultimate limit and that is “what is said in mediation stays with me until my grave.” I take confidence in anyone I expect that to be returned without any excuse, even if it meant a prison term. Yes there are exceptions to every rule however confidentiality is just that Confidential therefore no one knows not even the mediator ! ! !.
      Richard Gutierrez – Med.

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  2. “Thanks Don-

    I see two main takeaways: First, this case illustrates the need to for counsel to manage client expectations in advance of mediation. In my experience, it is often the lawyers who see mediation as a way out expensive, non-productive litigation. If that is so, clients are entitled to know in advance. All too often the lawyers – and the mediator — approach mediation with winks and smiles, believing they have found a way around a bad situation. That’s not ok. Lawyers have a duty to share the downside of a case from the outset and should have a contractual way out when the client has unrealistic expectations. It is better to turn down an engagement or withdraw from one than it is to end up as a defendant. Second, this case points to the distinction between privilege and confidentiality. A privilege is a right possessed by a party. Confidentiality is a duty imposed upon a professional. The malpractice allegations may have satisfied the statutory malpractice exception in this case, but little was said about the mediator’s duty of confidentiality. My knowledge of the state law in this instance is limited to what was reported, but the reference by the court to the statutory provision that allows a mediator to refuse to testify was not developed. Thus, despite the ”advisory opinion” on the applicability of privilege exception to set things straight on remand, nothing was resolved with respect to mediator’s duty of confidentiality.”

    Louis Kornreich
    Of Counsel
    BERNSTEIN SHUR

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  3. ” I always think of the duty of confidentiality as relating to communications by a party to the mediator that should not be shared with another party. I never thought about it as relating to communications between multiple representatives of the same party. The policy goals behind confidentiality are not really met when the issue relates to a party and the party’s counsel. While I would not like to be in the position of the mediator in this case, I am much less trouble by being required to testify in this circumstance verses a dispute between the parties to the mediation. ”

    Robert M. Fishman
    Co-chair of the Bankruptcy, REorganization and Creditors Rights Practice
    SHAW FISHMAN GLANTZ & TOWBIN LLC

    Like

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