Deposing A Mediator About What Happened In The Mediation (Roberts v. City of Fairbanks)

Pursuing a strategy? (Photo by Marilyn Swanson)

By: Donald L Swanson

  • There is no federal mediation privilege”;
  • the mediator’s testimony about the mediation is not privileged”; and
  • there is no legal bar to Defendants seeking the [mediator’s testimony] with regard to the mediation and settlement negotiations.”

Roberts v. City of Fairbanks, Case No. 17-cv-00034, U.S. District Court of Alaska (issued August 31, 2021, Doc. 126, at 10-11 & 14).

What follows is an attempt at summarizing the Roberts v City of Fairbanks opinion.

Background [Fn. 1]

–Conviction & Post-Conviction Trial

Plaintiffs are four men convicted of the October 11, 1997, murder of fifteen-year-old John Hartman.

In September 2013, the convicted men file post-conviction relief petitions in Alaska Superior Court, based on a confession by William Holmes naming himself and four other men as the actual perpetrators.

From October through November 2015, after two years of discovery, the state court holds a five-week trial, at which William Holmes testifies that he and several other men killed John Hartman.  Eleven other witnesses corroborate Holmes’s account, and a witness from the original trial testifies that her testimony had been coerced by the police.

–A Mediated Deal

The judge informs the parties at the close of evidence that he will not render a decision for six to eight months. 

So, prosecutors offer the convicted men a deal: the prosecution will consent to vacating the convictions and dismissing the charges, but only if all four convicted men agree to release the State of Alaska and the City of Fairbanks (and their employees) from any liability related to the convictions.

After a judicially supervised mediation, the convicted men enter into a release-dismissal agreement.

–Convictions Vacated, Suit Filed & Dismissed

Based on the mediated agreement, the court vacates the convictions and the prosecutors dismiss the indictments.

Despite the release-dismissal agreement, the convicted men then file this suit in federal court against the City of Fairbanks and its personnel, alleging claims under 42 U.S.C. § 1983 and § 1985.

The City Defendants move to dismiss the convicted men’s claims on various grounds, including (i) failure to establish a favorable termination of the underlying prosecution, and (i) such claims are barred by the release-dismissal agreement.

The District Court grants the motion to dismiss on the ground that the convicted men had not established a favorable termination. 

–Appeal & Remand

On appeal, the Ninth Circuit reverses and remands, holding that the convicted men’s claims are not barred by the favorable termination rule.

But the Ninth Circuit declines to consider whether the convicted men’s claims are barred by the release-dismissal agreement (as “not passed upon below”), leaving that issue for the District Court without further guidance.

During Remand: The Mediation Issue

So back in the District Court, City Defendants seek an order “bifurcating this proceeding and allowing limited, targeted discovery on the issue of enforceability” of the release-dismissal agreement.

The District Court grants the motion to bifurcate and stays the remainder of the case.

City Defendants develop a mediator-centered strategy. They seek to depose the mediator (a retired Judge), whose mediation efforts resulted in the final settlement agreement.

–City Arguments

According to City Defendants, the mediator “is uniquely positioned as the only neutral percipient witness to the negotiations and circumstances under which the settlement agreements were reached.”

City Defendants note that:

  • The Ninth Circuit “has not recognized a federal mediation privilege”; and
  • Alaska “state law privileges do not apply to this action in federal court.”

City Defendants also insist that the mediator:

  • will have discoverable information about, (i) what role, if any, the City and its individual officers played in the settlement negotiations, and (ii) her personal observations as to the circumstances under which the the convicted men executed the agreements at mediation”; and
  • “is likely to be an independent, neutral witness who can verify that the State was optimistic about its chances of success in the PCR hearing.”

City Defendants also maintain that “the information is proportional to the needs of the case” because:

  • “enforceability of Plaintiffs’ settlement agreements is potentially dispositive”; and
  • the “burden imposed on [the mediator] and the parties would be minimal” in comparison to “the tens of millions of dollars that Plaintiffs are seeking in damages from the City.”

–Convicted Men’s Arguments

The convicted men respond:

  • “there may not be a binding legal bar to requiring a [mediator] to testify on these matters”;
  • But “the Court plainly has discretion to allow or disallow it under [F.R.Civ.P.] 26(c) and [F.R.Evid.] 403”; 
  • City Defendants offer “no reason to believe that [the mediator] has unique knowledge or insight on any of the subjects it identifies”;
  • The mediator “was not only the assigned settlement conference judge,” she also (i) was one of the judges who presided at the convicted men’s trials, and (ii) ruled on their petitions for post-conviction relief; and
  • “Defendants’ desire to fish for something that might be possibly helpful in [the mediator’s] ‘observations’ regarding the settlement is not a sufficient basis to set state/federal comity aside.”

–City Defendant’s Reply

City Defendants:

  • acknowledge that it is “somewhat unusual to depose a former judge”; but
  • stress that they are “not seeking to call [the mediator] because she was a trial judge in the state court proceedings or to testify about Plaintiffs’ criminal trials”; and
  • instead “are seeking to depose her about her role as a mediator.”

City Defendants also:

  • contest the applicability of F.R.Evid. 403, noting that it “is not a discovery rule” and that “information within the scope of discovery need not be admissible to be discoverable”; and
  • contend that F.R.Civ.P. 26(c) does not apply because “Plaintiffs have not moved for a protective order” and because of “no basis to conclude a protective order is necessary to protect any party or witness from ‘annoyance, embarrassment, oppression, or undue burden or expense.’”


The Court rules in favor of the City Defendants, allowing the mediator to be deposed on what happened in the mediation. What follows is the rationale.

–No Dispute

The parties and the District Court agree that no “binding legal bar” exists to the mediator’s testimony:

  • Under F.R.Evid. 501, federal common law generally governs claims of privilege;
  • The Ninth Circuit has applied federal privilege law where, as here, the convicted men have filed federal claims under 42 U.S.C. § 1983 and supplemental state claims, even though “state contract law governed whether the parties had reached a settlement,” because “the underlying action that was allegedly settled contained both federal and state claims”;
  • Therefore, even if Alaska contract law provides the rule of decision regarding the release, federal privilege law applies; and
  • There is no federal mediation privilege in the federal rules and the Ninth Circuit has not recognized a mediation privilege under the federal common law—this Court declines to do so and finds that the mediator’s testimony about the mediation is not privileged.

–Applicable Rules

Additionally, F.R.Evid. 403 does not preclude this deposition, because that Rule addresses the admissibility of evidence a trial, not discoverability.

Instead, Rule 26(b)(1) provides the applicable standard for discoverable materials. Parties may obtain discovery, under such Rule, regarding any non-privileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering:

  1. the importance of the issues at stake;
  2. the amount in controversy;
  3. the parties’ relative access to relevant information;
  4. the parties’ resources;
  5. the importance of the discovery in resolving the issues; and
  6. whether the burden or expense of the proposed discovery outweighs its likely benefit.

–Relevant Information

Here, the information sought by City Defendants from the mediator is plainly relevant.  That’s because the convicted men allege:

  • “throughout the negotiations for the release dismissal agreement it was understood by all parties that the State knew Plaintiffs were innocent”;
  • “Defendants conspired with the prosecuting attorney . . . to force the Fairbanks Four to sign an unlawful release-dismissal agreement”;
  • The mediator was a neutral participant at the mediation and is likely to have discoverable information regarding the convicted men’s specific claims about the mediation process;
  • another issue is potentially dispositive—Defendants were not present at the mediation, and potentially significant sums of money are at issue in this litigation; and
  • information sought from the mediator is proportional to the needs of the case pursuant to Rule 26(b)(1);

–Mediator as Judge

Additionally, the convicted men contend that, “to compel testimony from a state judge regarding events witnessed in her official capacity is not within the best interest of comity amidst our dual system of jurisprudence” and “is not in keeping with . . . maintaining respect for both the state system of jurisprudence and the federal system.’”

The District Court rejects such argument because:

  • The case cited for this contention involves a state court judge testifying at a habeas petition hearing regarding the constitutionality of a trial he presided over;
  • By contrast, City Defendants seek the mediator’s testimony on her facilitation of mediation proceedings, which does not implicate the same comity concerns as she was not presiding over judicial proceedings during the mediation; and
  • The additional case cited is similarly inapposite because it concerns abstention, which “allows courts to decline to rule on an essentially local issue arising out of a complicated state regulatory scheme”—this is not relevant here.

Accordingly, the District Court finds no legal bar to City Defendants seeking the mediator’s testimony regarding the mediation and settlement negotiations.


Here’s guessing that mediation theorists and purists, everywhere, will find this Roberts v. City of Fairbanks opinion . . . let’s say, “disturbing.”

It will be interesting to see how the case plays out.


Footnote 1.  This background information is from a prior Order in the same case dated July 19, 2021 (Doc. 109, at 2-5).

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