Roytberg Legal Alert

When the parties started their mediation, they signed an agreement with the mediator with the following clause:

• To preserve the integrity of the mediation process it is agreed that neither Mediator, nor Mediator’s records or notes shall be subject to subpoena by either Participant or anyone acting on either Participant’s behalf in the event that this matter proceeds to litigation. Each Participant makes this covenant with the other as a condition of your agreement with each other to attempt mediation. Each of you also makes this covenant to Mediator to induce Mediator to serve as the facilitator of your negotiations. Participants agree to be responsible for any costs (including attorney fees) which Mediator might incur in order to prevent noncompliance with this paragraph.

In this case, both parties during a subsequent litigation joined in their desire to call the mediator as a witness to testify, but the mediator was against it. The court cited the New York State Manual for Administrative Law Judges and Hearing Officers and Judge Judith S. Kay’s ADR Task Force report, which stated that “The mediator shall not be called as a witness at trial.” Justice Garguilo agreed with the mediator that as a matter of public policy confidentiality was important. However, he noted that in this case both parties wanted the mediator called. The court’s decision to quash the subpoena finally rested on the fact that the parties contracted with the mediator by signing an agreement with the clause noted above. The Court chose not to disturb their contract.

THE TAKEAWAY: – For Mediators : include this language in your retainer agreements. For Parties: make sure you understand the consequences of contracting with the mediator to keep him/her out of court.