Compelling a Mediator to Testify: Here’s How it’s Done

 By: Donald L Swanson

“Testimony from the mediator would be crucial . . . and . . . refusing to compel that testimony posed a serious threat.”

“It became clear that the mediator’s testimony was essential to doing justice here–so we decided to use it.”

Wayne Brazil, Magistrate Judge, U.S District Court for Northern California

imageThe case is Olam v. Congress Mortgage Co., et al., 68 F.Supp.2d 1110 (N.D. Cal. 1999).

Plaintiff files suit against her lender for violating the federal Truth in Lending Act and related standards.

Before trial, the parties agree to mediate their disputes.  A mediation session occurs, and a binding settlement agreement is signed.

Thereafter, plaintiff suffers settler’s remorse and wants to back out of the deal.

Defendants insist on enforcing the deal, and they file a Motion with the Court to do just that.

Plaintiff hires a new attorney and files an Opposition to the enforcement Motion. The Opposition document identifies two grounds for setting aside the settlement agreement:

–the agreement is unconscionable; and

–plaintiff signed the agreement under undue influence.

All parties to the enforcement dispute agree to waive mediation confidentiality and privilege restrictions.  And they all want to use testimony from the mediator.

A major issue in the case is this:

Should the mediator be compelled to testify?

Olam v. Congress Mortgage Co.

The Magistrate Judge writes his opinion on the matter.  The opinion is long.

No . . . that’s an understatement: “long” does not do the opinion justice.  The opinion’s length is massive:

–it has more than 25,000 words; and

–it covers 42 pages in the F.Supp.2d Reporter — this set of books has large pages, small type, single spacing, and no pictures.

The Magistrate Judge agonizes in his opinion over such issues as these:

–Which law controls, California’s or Federal?

–What is the factual background?

–To what extent is a waiver of confidentiality by all parties effective?

–What legal standards control the analysis?

–To what extent is the mediator’s privilege inviolable?

–How should competing interests of justice be evaluated and weighted?

–What procedural safeguards should be instituted when a mediator is compelled to testify?

–What merit, if any, do plaintiff’s unconscionability and undue influence claims hold in light of available evidence?

The Magistrate Judge, ultimately, decides to compel the mediator to testify and receives other evidence from the mediation session.  The Magistrate Judge then announces his decision in the opinion.  He, (1) rejects plaintiff’s unconscionability and undue influence claims, and (2) grants defendants’ Motion to enforce the mediation agreement.

According to the Casemaker research tool, this Olam v. Congress Mortgage Co. opinion has been cited 25 times as authoritative, with no negative cites.

What do you all think about this?


2 thoughts on “Compelling a Mediator to Testify: Here’s How it’s Done

Add yours

  1. From a mediator’s perspective, I do not love the result as I do not love the idea of ever being compelled to testify about a mediation.

    On the other hand, from the court’s perspective, I can see why the judge probably felt he had no choice. It sounds like without the mediator, it would be almost a he said/she said type of dispute, and so having testimony from the mediator, a neutral, would be useful.

    The fact that the parties agreed to waive confidentiality seems to be key. In that instance, there was presumably no one opposing the mediator testifying and so it would seem that it really was not the mediator being “compelled.”

    Liked by 1 person

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