being subpoenaed as a mediator—how to avoid and what to do
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Being Subpoenaed as a Mediator—
How to Avoid and What to do, When
Honorable Rick Morris Gene Roberts, Jr.
Question
If you have ever been subpoenaed to testify or to produce documents, if so, what did you do resist testifying?
Unless expressly authorized by the disclosing party, the impartial third party may not disclose to either party information given in confidence by the other and shall at all times maintain confidentiality with respect to communications relating to the subject matter of the dispute. TCPRC 154.053(b)
Unless the parties agree otherwise, all matters, including the conduct and demeanor of the parties and their counsel during the settlement process, are confidential and may never be disclosed to anyone, including the appointing court. TCPRC 154.053(c)
A communication relating to the subject matter of any civil or criminal dispute made by a participant in an alternative dispute resolution procedure, whether before or after the institution of formal judicial proceedings, is confidential, is not subject to disclosure, and may not be used as evidence against the participant in any judicial or administrative proceeding. TCPRC 154.073(a)
Any record made at an alternative dispute resolution procedure is confidential, and the participants or the third party facilitating the procedure may not be required to testify in any proceedings relating to or arising out of the matter in dispute or be subject to process requiring disclosure of confidential information or data relating to or arising out of the matter in dispute. TCPRC 154.073(b)
If this section conflicts with other legal requirements for disclosure of communications, records, or materials, the issue of confidentiality may be presented to the court having jurisdiction of the proceedings to determine, in camera, whether the facts, circumstances, and context of the communications or materials sought to be disclosed warrant a protective order of the court or whether the communications or materials are subject to disclosure. TCPRC 154.073(e)
Ethical Guidelines for Mediators Texas Supreme Court (2011)
2. A mediator should protect the integrity and confidentiality of the mediation process…commences with the first communication to the mediator, is continuous in nature, and does not terminate upon the conclusion of the mediation.
Ethical Guidelines for Mediators Texas Supreme Court (2011)
6(a) The mediator should inform the parties that the mediation is confidential to the extent provided by law.
Ethical Guidelines for Mediators Texas Supreme Court (2011)
(8) A mediator should not reveal information made available in the mediation process, which information is privileged and confidential, unless the affected parties agree otherwise or may be required by law.
Ethical Guidelines for Mediators Texas Supreme Court (2011)
(8)(c) A mediator should maintain confidentiality with respect to communications relating to the subject matter of the dispute.
Ethical Guidelines for Mediators Texas Supreme Court (2011)
(1) A mediator is an impartial person.
(9) A mediator should be impartial toward all parties.
Smith v. Smith 154 F.R.D. 661 (N.D. Tex. 1994)
A subpoena duces tecum was served
on a state-court appointed mediator
to give testimony about allegations
of fraud in the signing of the MSA;
mediator moved to quash the
subpoena; federal law governs the
analysis and the court quashed the
subpoena duces tecum.
In re March, 1994—Special
Grand Jury 897 F. Supp. 1170 (S.D. Ind. 1995)
A mediator was subpoenaed to
testify before federal grand jury and
to produce documents to determine if
parties to the mediation made
statements that constituted false
claims in a criminal matter;
mediator privilege under Indiana
law did not apply to federal grand
jury proceedings. The motion to
quash was denied.
Pate v. Toto 2018 WL 7891240 (N.D. Ala. August 2,
2018)
A party subpoenaed mediator to
produce documents and sit for
deposition; motion to quash denied
because communications after the
mediation were not covered by
Alabama’s Civil Court Mediation
Rules that protect communications
during the mediation.
In re: Subpoenas Issued to
JAMS, Inc., 2018 WL 3559092 (S.D. N.Y. July 24,
2018)
Subpoenas issued to mediator and
mediation organization to produce
documents relating to alleged
threats made by a party at a
mediation; court required an in camera review of the mediator and
the organization’s notes before
quashing the subpoenas.
Gaskin v. Gaskin 2006 WL 2507319 (Tex. App.—Fort
Worth 2006)
A party subpoenaed mediator to
elicit testimony about MSA
language; mediator filed a motion to
quash which was granted by the trial
court and affirmed by the court of
appeals.
Humphrey v. Mesa
Operating Partnership 1999 WL 652500 (Tex. App.—Dallas
1999)
A party issued a subpoena to compel
production of law firm’s records
relating one of its attorney’s
activities as a mediator, seeking to
know dates and outcomes of
mediations and payments received
by the mediator; trial court denied a
motion to compel and that decision
was affirmed by the court of appeals.
Beddingfield v.
Beddingfield 2018 WL 6378553 (Tex. App.—Waco
December 5, 2018)
A party sued the law firm that
employed the mediator after MSA was
signed. From the opinion: “The
mediator had made the representation
based on information ‘apparently’
furnished by mom to him.” Daughter
alleged at a second mediation that mom
“through the mediator” was adamant
about the ownership of certain trusts.
Hill v. Shamoun & Norman 544 S.W.3d 724, 730 (Tex. 2018)
“There is disputed testimony as to who
negotiated the final settlement….Hill,
Benedict, and Judge Stickney—who
acted as mediator—testified that
Shamoun was not involved and did not
settle the web of litigation on May 5.
Judge Stickney testified that during
Shamoun's brief time at the mediation
on May 5, Shamoun said he was not
representing Hill in the mediation
because of a disagreement.”
Insurance issues (please ask your agent)
• Does mediator insurance cover costs and fees associated with
a subpoena?
• If so, what are the policy limits?
• Is it possible to purchase an endorsement or optional
coverage for responding to a subpoena?
• Does your policy require specific language to be in your
Agreement to Mediate?
Order Quashing Subpoena
• The subpoena objected to by Mediator is quashed.
• The testimony/request for documents shall not
take place.
• Mediator is entitled to reasonable and necessary
attorney’s fees in the amount of $ ____________.
• Mediator is entitled to costs in the amount of
$____________.
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