TO THE HONORABLE COURT:
The Association of Attorney Mediators ("AAM") hereby submits its Amicus Curiae Brief in Support of Tom James' Motion to Quash
Subpoena or, in the alternative, for Protective Order for attorneys' fees, fees and costs and brief in support thereof (the "Motion to
Quash").
The Motion to Quash is brought by Tom James, a mediator who conducted a court annexed mediation in a predecessor lawsuit
between the parties to the instant federal lawsuit. The Defendants seek Tom James' testimony to establish the circumstances under
which a settlement agreement was entered into by the parties during a mediation session conducted by Tom James. AAM, as Amicus
Curiae, seeks to support Tom James' position and to protect the integrity of the mediation process and the office of mediator by
prohibiting in all cases any mediator testimony being compelled regarding the communications at the mediation of terms, conditions,
or circumstances surrounding a settlement agreement entered into during the mediation process.
The parties to the instant federal lawsuit were also parties to a predecessor state court lawsuit in the 192nd Judicial District Court of
Dallas County, Texas, Case Number 86-8798-D, styled, Coralie C. Smith, et al vs. Clayton J. Smith, et al. In that lawsuit, the 192nd
District Court directed the parties to participate in a court annexed mediation with Tom James serving as mediator. That mediation
concluded with a settlement of that lawsuit, as well as a related case, Cause Number 86-3652-K, styled Smith Protective Services,
Inc. vs. Andrew L. Smith, which was also pending the 192nd District Court (collectively, the "state court lawsuits").
In the instant federal lawsuit Plaintiff Andrew Smith is suing Defendants Mark Smith and Clayton Smith for breaching a settlement
agreement of the state court lawsuits, which was executed during a 1989 mediation conducted by Tom James. Andrew Smith alleges
that Mark and Clayton Smith (his brothers) never intended to perform promises they made in the settlement agreement. He alleges
that Mark & Clayton Smith failed to give "completed" affidavits based on their personal knowledge of Jack Ayers' (the family's
company lawyer) involvement in a 1983 stock transfer to Clayton Smith, both events which Andrew Smith claims were the result of
conspiracies initiated by Mark and Clayton Smith, together with Jack Ayers. In addition, Andrew Smith asserts federal securities
fraud claims against Mark and Clayton Smith, alleging that they failed to disclose a possible sale of certain assets of Smith Protective
Services, Inc. when he signed the 1989 settlement agreement. The Defendants have now chosen to dispute the allegations of Plaintiff
Andrew Smith regarding what events took place during the mediation. As a result, Defendants Mark and Clayton Smith subpoenaed
Tom James, the mediator, to testify specifically as to the events, conversations, and circumstances surrounding the settlement
agreements, together with requesting that he bring "all documents in your possession relating to mediation [the state court lawsuits]".
This Brief assumes, arguendo, that Tom James possesses knowledge of relevant evidence relating to the allegations of the parties
regarding the settlement agreement of the state court lawsuits.1 This puts squarely before the court the premise that under no
circumstances may a mediator be compelled to testify and disclose confidential communications from a mediation in order to prove,
disprove, or explain a settlement agreement arising out of the mediation.
The purpose of Tom James' Motion to Quash is not merely to protect Tom James from testifying as to the circumstances surrounding
a mediated settlement agreement. His Motion to Quash has a broader purpose, that is, to advance and protect a significant policy of
the State of Texas, as set forth in § 154.002 of Texas Alternative Dispute Resolution Procedures Act, Tex.Civ.Prac.&Rem.Code §
154.001, et seq. (hereinafter, the "ADR Act"):
Furthermore, the state courts of Texas are required to
pursue that policy: "It is the responsibility of all trial and
appellate courts and their court administrators to carry out
the policy under § 154.002." ADR Act § 154.003.
In order to advance and protect the stated interests of the State of Texas in alternative dispute resolution, the ADR Act requires the
mediator to keep confidential all communications made during a mediation:
In addition to this standard directed to the mediator, there is also a "blanket" mediator confidentiality
standard imposed upon the mediation process:
(a) Except as provided by Subsection (c) and (d), 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.
(b) 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.
(c) An oral communication or written material used in or made a part of an alternative dispute resolution procedure is admissible or discoverable if it is admissible or discoverable independent of the procedure.
(d) If this section conflicts with other legal requirements for disclosure of communications 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.
[emphases added]
Sections 154.053(b) and (c) of the ADR Act could be misread to indicate that if both parties agree, that a mediator must disclose
confidences gained during the mediation process. That is not a correct interpretation of the statute.2 Moreover, by Plaintiff's support
of Tom James' Motion to Quash, there is no mutual agreement to disclose
in this case.3 Defendants, by seeking to compel Tom James' testimony are effectively waiving any objection to him testifying as to
confidential matters. However, by Plaintiff's opposition to that request, there is no mutuality of agreement; therefore, ADR Act §
though that statute is silent as to any privilege of the mediator, § 154.073 definitively establishes a confidentiality for the mediation
process, upon which the mediator has a personal basis to object to testifying, and which also reinforces nondisclosure of confidential
communications when one of the parties to the process objects, as in the instant case.
In addition to the statutory protections mandating nondisclosure of the confidential communications by Tom James, the parties to the
instant lawsuit were subject to the rules for mediation during the state court lawsuits, as issued by the District Courts of Dallas
County, Texas and, upon information and belief, were not objected to by either party prior to the institution of mediation, and
therefore such objections to those rules were waived pursuant to § 154.022 of the Texas Alternative Dispute Resolution Act, which
states at subparagraph b: "Any party may, within 10 days after receiving the notice under subsection (a) file a written objection to the
referral." Rule 12 of the Rules for Mediation that the parties participated in stated as follows:
The parties shall maintain the confidentiality of the mediation and shall not rely on, or introduce as evidence in any arbitral, judicial
or other proceeding: (a) views expressed or suggestions made by another party with respect to a possible settlement of the dispute;
(b) admissions made by another party in the course of the mediation proceedings; (c) proposals; made or views expressed by the
Mediator; or (d) the facts that another party had or had not indicated willingness to accept a proposal for settlement made by the
Mediator. A full copy of the Rules of Mediation is attached as Exhibit "2" to Tom James' Motion to Quash. Rule 12 does not provide any
exceptions to its terms. Accordingly, under Rule 12 and Defendants' failure to object to its application to them under ADR Act §
154.022, the Defendants are precluded from eliciting any testimony from Tom James regarding the mediation or the settlement
agreement which resulted from the mediation. Accordingly, the Court should grant his Motion to Quash.
At this time, there appears to be only one Texas case, state or federal, directly on point regarding a mediator testimonial privilege.
Williams v. State of Texas, 770 S.W. 2d 948 (Tex.App.- Houston [1st. Dist.] 1989, n.w.h). In Williams, a criminal case, the Houston
Court of Appeals held:
A review of decisions of other federal courts and state courts also reveals much support for the notion that as a matter of common
law, Tom James cannot be subpoenaed to testify as to confidential communications relating to the circumstances of the parties'
settlement agreement entered into at mediation. The benchmark case for analysis of a mediator testimonial privilege from divulging
confidential mediation communications regarding settlement terms (and the existence or non-existence of a settlement) is the Ninth
Circuit opinion in National Labor Relations Board vs. Joseph Macaluso,Inc., 618 F.2d 51 (9th Cir., 1980), which upheld the
privilege.4
In the Macaluso case the court considered whether or not the National Labor Relations Board erred in disallowing the testimony of a
Federal Mediation and Conciliation Service ("FMCS") mediator as to a crucial fact occurring in his presence relating to an alleged
settlement agreement during labor mediation. The FMCS mediator Douglas Hammond, conducted a series of three mediation
sessions between the company and the union. The NLRB found that the company and the union had finalized a collective bargaining
agreement during the course of the three meetings with Hammond and that the company violated the Nation Labor Relations Act by
failing to execute a written contract incorporating the final agreement negotiated with the union at the mediation. The company
contended the parties never reached an agreement, and more particularly, that it did not do so at the meetings with Hammond. The
testimony of union officials directly contradicted the testimonies of the company officials.
In order to support its allegations, the company requested that an administrative law judge subpoena Mediator Hammond to obtain
his testimony regarding the last two bargaining sessions during the mediation. The subpoena was initially granted, but later was
revoked upon a motion to quash that was initiated by the FMCS, the organization which had oversight over Mediator Hammond.
The company's complaint with the order quashing the subpoena is expressed by the following language: "Absent Hammond's
tie-breaking testimony, the ALJ decided that the union witnesses were more credible and ruled that an agreement had been reached.
The company's sole contention in response to this request for enforcement of the resulting order to execute the contract is that the
ALJ and NLRB erred in revoking the subpoena of Hammond, the only person whose testimony could have resolved the factual
dispute." Macaluso, supra at 53.
From the facts set forth in the Macaluso case, it is readily apparent that the same dilemma was present in that case as is in the instant
case, namely that there were divergent views among the parties as to what was agreed to at the mediation, and that the mediator's
testimony might possibly clarify the dispute. In Macaluso, both the NLRB and the FMCS (as Amicus Curiae) defended a long
standing policy that: "Mediators, if they are to maintain the appearance of neutrality essential to successful performance of their task,
may not testify about the bargaining sessions they attend." Id. at 53. Accordingly, the Ninth Circuit framed this question of first
impression:
Id.
The Ninth Circuit's standard for determining whether to protect the mediator testimonial privilege was
whether or not preservation of mediator effectiveness by protection of a mediator neutrality was consistent with
the powers and duties of the NLRB under the NLRA or, "stated differently, we must determine whether the
reason for revocation [of the subpoena] is legally sufficient to justify the loss of Hammond's testimony." Macaluso,
supra at 54. The Ninth Circuit determined that the NLRB's regulations authorizing revocations of subpoenas
provided, among other things, that a subpoena could be revoked "if for any reason sufficient in law or the
subpoena is otherwise invalid." Id. Having found that there was a policy basis to support the revocation, the
Ninth Circuit then had to balance that policy against "the fundamental principle of Anglo-American law that the
public is entitled to every person's evidence." Id. (Supreme Court cites omitted).
In particular, the court stated:
Id. at 54.
The Ninth Circuit continued to analyze the public interest be protected in maintaining the perceived and actual impartiality of federal
mediators, and looked to the statute creating the FMCS which spoke of such policies as promoting:
Id. at 54-55 (Citing, 29 USC § 171 (a)(d)).
Parallels to the instant case are easily found. The Texas Legislature has made it abundantly clear that it is a role of mediation to
promote the peaceful resolution of disputes, as set forth in the ADR Act § 154.002 cited previously. Moreover, in Macaluso, the
Ninth Circuit stated "Since Congress made this declaration [regarding the need for dispute resolution procedures], federal mediation
has become a substantial contributor to industrial peace in the United States... Any activity that would significantly decrease the
effectiveness of this mediation service could threaten the industrial stability of the nation." Id. at 55.
In this instance, Tom James is one of several hundred mediators who routinely mediate cases for state and federal courts. The AAM,
as a trade association for several hundred mediators who conduct court annexed mediations, has stated by way of affidavit of its
president, Jay Patterson, that the participating parties' perception of neutrality of mediators in court annexed mediations would be
severely impaired if the parties could anticipate that a mediator could be called to testify as to any aspect of the mediation, and
particularly, if called to testify as to the settlement agreement reached by the parties. See Affidavit of Jay Patterson, attached as
Exhibit "1" and incorporated. In addition, the court in Macaluso noted: "Any activity that would significantly decrease the
effectiveness of this mediation service could threaten the industrial stability of the nation." If the Court rules that mediators can be
compelled to testify regarding settlements in mediation, parties would be less likely to meaningfully participate in mediation if they
are under a fear that anything they might say could be construed as bearing upon the settlement value of a case, therefore being
relevant for an examination of the efficacy of a settlement agreement. See Affidavit of Jay Patterson. See also Macaluso, supra at
55 ("...the parties to conciliation conferences must feel free to talk without any fear that the conciliator may subsequently make
disclosures as a witness in some other proceeding, to the possible disadvantage of a party to the conference.")
As a result of balancing of interests in the Macaluso case, that court concluded (as well should this Court) as follows:
Id. at 56 (emphasis added).
The Macaluso case was not decided in the vacuum. Other cases have addressed similar issues, even under the most onerous of
circumstances, and have determined that the mediator should not be called to testify.5 As a result of the Florida statute abrogating a
mediator's common law privilege against testifying, the Florida Court of Appeals focused only on two alternative grounds: (1)
whether the testimony was barred under FL.R.Evid. 408 having to do with offers to compromise, and (2) whether or not the dispute
resolution organization was an investigatory arm of the state for purposes of determining if the solicitation of the defendant's
statements by the mediator violated his rights against self incrimination. On both counts, the Court of Appeals found against the
Defendant and allowed the testimony to be considered.
For example, in Fenton v. Howard, 575 P. 2d 318 (Ariz. 1978), the Arizona Supreme Court indicated that a similar balancing test
should be used to "balance the needs of the individual for the information and the need of the mediation organization for
confidentiality". Id. at 321 (Protection of a procedure for the mediation of domestic and family controversies). When you examine
court opinions from other states which actually upheld the mediator testimonial privilege, you find that mediators are protected from
testifying even under the most compelling of circumstances. For example, in U.S. vs. Gullo, 672 F. Supp. 99 (W.D. NY, 1987), the
defendant who was charged with participating in a use of extortionate means to collect credit ("loan sharking") sought to exclude
from evidence statements that he made during a arbitration hearing conducted by the Better Business Bureau. His initial complaint
was that the statements were solicited by an arm of the government, and, therefore, were barred under the 5th Amendment. The
district court readily disposed of that argument.
The defendant's second argument in Gullo, which was persuasive, was based upon an assertion of a privilege for communications
made in the context of the mediation.6 In conducting its analysis of this argument, first, the district court determined that Federal
Rule of Evidence 501 allows the court to develop statutory and common law privileges in light of the court's reason and experience.
Gullo, supra at 103. The district court then
conducted the balancing test of the federal government's need for the information for prosecutorial purposes, the importance of the
relationship or policy sought to be furthered by the state rule of privilege, the special need for the information sought to be protected,
and the adverse impact on the local policy that would result from nonrecognition of the privilege. Id. at 672.
The district court noted there was a strong policy in favor of full development of facts and admissibility in criminal cases. The
district court then noted that there was a state policy for the "encouragement of participation in 'the resolution of disputes in an
informal atmosphere without restraint and intimidation'... It directly serves to ensure the effectiveness of the program and thereby,
secondarily, it serves to promote continued support for an existence of the program." Id. at 672. Regarding prosecutorial purposes,
the district court observed that the need for the mediator's testimony was not great, since the grand jury could have made its findings
on other evidence. Finally, as to adverse impact, the court noted that the effectiveness of the dispute resolution program would be
reduced by compelling disclosure. Id. at 674. Accordingly, the court found that after conducting a balancing test, that the statements
made during the dispute resolution process and all terms and conditions of the settlement entered into during that proceeding would
be suppressed from evidence. Id.
Finally, perhaps in the most compelling fact situation which would seem to require the testimony of the mediator, resulted in
protection of the mediator from testifying. In the case of People vs. Snyder, 492 New York 2d 890 (Supreme Court, Erie County,
New York, 1985), the defendant in a murder trial raised a defense of justification claiming that the defendant shot and killed the
victim in self defense. Some mention by the defense counsel was made in his opening statement regarding the victim and defendant's
participation with the community dispute resolution center prior to the fatal shooting. The district attorney then subpoenaed all
records pertaining to the mediation between the defendant and the victim and a third person, Mediator Deborah Nelson. The Better
Business Bureau Foundation, which supported the Community Dispute Resolution Center, appeared on behalf of the mediator.
In examining whether or not to release the evidence, the New York Supreme Court (trial court) noted: "It was a feeling of the
legislature that in order for such programs to be successful, the parties availing themselves of the services of these forums must feel
that they can air their disputes 'in an informal atmosphere without restraint
or intimidation'". Id. at 891. In a New York statute, very similar to ADR Act §154.073, the New York court cited a section of the
judiciary law of New York:
Id.
The New York court went on to note that even if it could be determined that "the defendant can be found to have waived the
confidentiality of the records pertaining to the mediation sessions in which he was involved, the statute, as drafted permits no such
waiver." Id. at 892.7 After conducting its weighing on the various factors, in the Snyder case, the New York court quashed the
subpoena, holding: "to grant the district attorneys request to review the records of the Community Dispute Resolution Center would
subvert the legislature's clear intention to guarantee the confidentiality of all such records and communications." Id. at 892.
The Plaintiff is not pursuing a fraudulent inducement claim with regard to the settlement agreement at issue. His claim is that the
Defendants Mark and Clayton Smith simply failed to perform as agreed to, and that they never intended to perform as agreed.
Plaintiff's securities fraud claim is based on a failure of the Defendants to inform Plaintiff of material matters regarding the value of
stock he sold as a part of the settlement agreement. Therefore, what Defendants told or did not tell Plaintiff is relevant. The mediator
is simply no a part of that equation. Moreover, Plaintiff's counsel, F. Dean Armstrong, testified at his deposition:
A. Well, listen, you know, you all know nobody told us about that.
There is no dispute about it. But as I understand the ADR confidentiality
mandate, all matters pertaining to what occurred at a mediation session are
confidential. We have filed a lawsuit based on the written settlement
agreement and based on the representations in the written settlement
agreement, not about anything pertaining to what was said during the
mediation session. So, I'm not going to answer that question.
A. As I read the statute, everything pertaining to the settlement
conference, the ADR settlement conference is confidential. And as I have
said before, we sued on the settlement agreement and not what
went on in connection with the ADR conference, so I'm going to have to
refuse to answer that question.
In addition to the Plaintiff's counsel's position that the contents of communications at the mediation session are not in issue, the
Court, in its Memorandum Opinion and Order of March 19, 1993, stated: "Neither side contends the release in ambiguous. The
interpretation of an unambiguous instrument is a question of law." (citation omitted) Accordingly, parol evidence will not be
allowed, and Tom James' testimony (even assuming he knew the parties' intent) is not relevant. Alternatively, the other participants
at the mediation session are available to testify, such that the jury can make its findings on other evidence. See Gullo, supra at 672.
Therefore, the Motion to Quash should be granted.
The Court should not require Tom James to testify as to any communications heard or conduct he observed at the mediation of the
state court lawsuits. AAM asserts that the Motion to Quash should be based on the ADR Act alone. If the Court determines that a
common law weighing of policies should occur, Tom James' testimony is simply not relevant to any material issue, and even if
relevant, is of marginal utility. Moreover, the case law establishes that even under circumstances vastly more compelling than this
case, the mediator testimonial privilege was left intact. Accordingly, AAM requests that Tom James' Motion to Quash be granted.
Respectfully submitted,
ON BRIEF AS OF COUNSEL:
Charles Guittard
Bob Bliss
Sid Stahl
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ANDREW L. SMITH,
§
Plaintiff,
§
§
vs.
§
CIVIL ACTION
§
NO.3-92CV-0170-D CLAYTON J. SMITH, MARK L.
§
SMITH, SMITH PROTECTIVE
§
SERVICES, INC., SMITH FIRE
§
EQUIPMENT, INC. and
§
MARCLA, INC.
§
Defendants.
§
IN SUPPORT OF TOM JAMES' MOTION TO QUASH SUBPOENA
Circumstances (Words and Conduct) Surrounding a Mediated Settlement AgreementIt is the policy of this state to encourage the peaceable resolution of disputes,
with special consideration given to disputes involving the
parent-child relationship, including the mediation of issues
involving conservatorship, possession and support of children,
and the early settlement of pending litigation through
voluntary settlement procedures. [emphases added]
§ 154.053(b). 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.
154.053(c). 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 by disclosed to anyone, including the appointing court.
§ 154.073. Confidentiality of Communications in Dispute
Resolution Procedures
Mediator's Testimony as to the Circumstances (Words and Conduct) of the MediationConfidentiality. Confidential information disclosed to a mediator by the parties or by witnesses in the course of the mediation shall
not be divulged by the Mediator. All records, reports or other documents received by a mediator while serving in that capacity shall
be confidential. The Mediator shall not be compelled to divulge such records or to testify in regard to the mediation in any adversary
proceeding or judicial forum. Any party that violates this agreement shall pay full fees and expenses of the Mediator and other
parties, including reasonable attorneys' fees, incurred in opposing the efforts to compel testimony or records from the Mediator.
Contrary to the State's assertions, we can not consider any evidence from the dispute resolution procedure that appellant and
complaintant participated in prior to his arrest, as disclosures made in an ADR procedure are confidential, and not subject to
disclosure. Tex.Civ.Prac. & Rem. Code Ann. sec. 154.073 (Vernon Supp. 1989). However, we find that the testimony of the
complaintant provides sufficient evidence to support appellant's conviction for theft from a person.
Can the NLRB revoke the subpoena of a mediator capable of providing information crucial to resolution of a factual dispute solely
for the purpose of preserving mediator effectiveness?
The facts before us present a classic illustration of the need for every person's evidence: The trier of fact is faced with directly
conflicting testimony from two adverse sources, and third objective source is capable of presenting evidence that would, in all
probability, resolve the dispute by revealing the truth. Under such circumstances, the NLRB revocation of Hammond's subpoena can
be permitted only if denial of his testimony "has a public good transcending the normally predominant principle of utilizing of all
rational means for ascertaining truth." (Supreme Court cites omitted).
Sound and Stable Industrial Peace... by the settlement of issues by employers and employees through the processes of conference
and collective bargaining, between employers and representatives of their employees... by making available full and adequate
governmental facilities for conciliation, mediation, and voluntary arbitration to aid and encourage employers and representatives of
their employees to reach and maintain agreements concerning rates of pay... to make all reasonable efforts to settle their differences
by mutual agreement reached through conferences and collective bargaining...."
That the complete exclusion of mediator testimony is necessary to the preservation of an effective system of labor mediation, and that mediation is essential to continue an industrial stability, a public interest sufficiently great to outweigh the interest in obtaining every persons evidence.
Except as otherwise expressly provided in this article, all memoranda, work products, or cases files of the mediator are confidential
and are not subject to disclosure in any judicial or any administrative proceeding. Any communication relating to the subject matter
of the resolution made during the resolution process be any participant, mediator, or any other person present at the dispute
resolution shall be a confidential communication.
Setting Aside the Mediator Testimonial PrivilegeQ. What about the Smith Fire Equipment proposed sale? Was it discussed in that joint [Mediation] session?
(Armstrong Depo. at page 39, lines 7-20) (Emphases added)
(Armstrong Depo. at page 46, lines 3-9) (Emphases added)
GRANT SEABOLT, P.C.
1000 Premier Place
5910 N. Central Expressway
Dallas. Texas 75206
Phone: (214) 891-6336
Fax: (214) 891-6386
D. Grant Seabolt, Jr.
SBN: 17942500
COUNSEL FOR ASSOCIATION OF
ATTORNEY MEDIATORS
Jay Madrid
Winstead, Sechrest & Minick, P.C.
Renaissance Tower
1201 Elm St., Ste. 5400
Dallas, TX 75270
(Former Dallas Bar Association
ADR Committee Chairman)
Guittard, Hyden & Guittard, P.C.
4849 Greenville Ave, Ste. 680
Dallas, TX 75206
(Chairman, State Bar of Texas
ADR Section)
Robert Harms Bliss, P.C.
P.O. Box 12825
Sherry Lane Place
5956 Sherry Lane, Ste. 1900
Dallas, TX 75225
(President, North Texas Chapter of AAM)
Texas Commerce Tower
2200 Ross Ave, Ste. 4000
Dallas, TX 75201
(Chair, Dallas Bar Association
ADR Committee)
Certificate of Service
This is to certify that a true and correct copy of the foregoing Motion has been hand delivered on January 10, 1994 to the following:
Lawrence J. Friedman
Friedman & Associates. P.C.
570 Preston Commons West
8117 Preston Rd.
Dallas, TX 75225
Richard E. Young
Sheehan, Young & Culp, P.C.
3102 Oak Lawn, Suite 950
Dallas, TX 75219
and by facsimile (708) 798-1597, to:
F. Dean Armstrong
Law Offices of F. Dean Armstrong, P.C.
639 Perth Avenue
Flossmoor, IL 60422
D. Grant Seabolt, Jr
NOTES
[Emphasis added]
Another example where a mediator was compelled to testify was in the case of State of
Florida vs. Nicholas Castellano, 460 Southern 2d 480 (Fla.App. [2d Dist.] 1984). In
that case, a criminal defendant accused of murder sought to prove a defense of
self-defense by calling the mediator to testify that during a mediation session the
victim of the alleged attempted murder made life threatening statements to him. In
affirming the trial court's denial of the motion to quash, the Florida Court of Appeals
Florida had prescribed all common law privileges and made them the subject of statutory
privileges: "privileges recognized only as provided--except as otherwise provided by
this chapter." Id. at 481. Accordingly, that court demurred on the issue of a
mediator's common law privilege against testifying "privileges in Florida are no longer creatures of judicial decision." Id.
As a result of the Florida statute abrogating the mediator's common law privilege
against testifying, the Florida Court of Appeals focused only on two, alternative
grounds for excluding the mediator's testimony: (1) whether the testimony was barred
under FL.R.EVID. 408 as part of an offer to compromise, or (2) whether the dispute
resolution organization was an investigatory arm of the state for purposes of
determining if the mediator's solicitation of the defendant's statements violated his
rights against self-incrimination. On both counts, the Court of Appeals found against
the defendant and allowed the mediator's testimony to be considered. Accordingly, even
though the Castellano opinion allowed the testimony of the mediator, it is not precedent
in Texas for allowing such testimony because there is no Texas legislative fiat
proscribing all common law privileges. Instead, in Texas, the ADR ACT supplies,
statutory additions to the mediator's common law testimonial privilege.
1 If Tom James were to tell what he knows or does not know regarding the information
sought by the Defendants, he would compromise the mediation communication privilege.
In order to preserve the status quo, Tom James must remain entirely neutral and entirely
Defendants, the confirmation of that fact would tend to favor one side's position over
another and cause harm equivalent to testifying as to statements he actually heard or
conduct he actually observed.
2 Note, that the statutory "exception" does not make it mandatory that the mediator
divulge confidential communications if the parties agree that he may do so. By the
plain wording of the statute, the word may leaves it within the discretion of the
mediator whether to divulge the confidential communications. In other words, it does
not abrogate any common law privilege which may reside with the mediator, nor does it
abrogate the clear language of ADR Act § 154.073 which creates a "blanket" proscription
on divulging confidential communications from a mediation. Otherwise, the statute would
have been worded differently, e.g., "the neutral shall divulge," or an affirmative
statement that "no privilege exists for the mediator not to divulge confidential
communications if all parties to the mediation agree that the mediator can divulge
such."
3 Interestingly, the Defendants, who now appear desirous of waiving the mediation
communication privilege, took an opportunity at the deposition of one of Defendants'
prior counsel to object to his testifying as to what occurred at the mediation, based
(among other grounds) on the "ADR Privilege." See Deposition of Martin Stewart, pages
10, 11, 12, 13, and 17 (5 instances), and particularly page 17, line 22 to Page 18, line
4:
MR. YOUNG (Defendants' Counsel): Mr. Stewart, on behalf of Clayton Smith, I'll instruct
you that you may answer [Plaintiff's counsel's question] that so long as you do not
disclose to the other side any attorney-client privileged communications between you and
Mr. Clayton Smith, any joint defense privileges between all the defendants in the state
4 The Macaluso opinion was followed in Elizabeth Forward School District v. Penn. Labor
Relations Board, 624 A.2d 215, 217 (Pa. Commonwealth Ct. 1992); Maine Central Railroad
Co. and Portland Terminal Co. v. Brotherhood of Maintenance of Way Employees, 117 F.R.D.
485,486 (D.C. Me 1987; and Bliznik v. International Harvester Co., 87 F.R.D. 490, 493
(N.D. Ill. 1980).
5 That is not to say that exceptions do not exist. One exception is a statutorily created
exception, such as in North Dakota where a mediator can be called to testify if "the
validity of the mediated agreement is an issue." North Dakota Civil Statutes 31-04-11
(3). The North Dakota statute, however, represents a legislative fiat that specifically
recognizes that states interest in allowing such testimony. No such legislative fiat is
present in Texas, nor can such be read into the Texas ADR Act.
articles | newsletters | mediation FAQ | resources | links | feedback
Questions or Comments?
Give us feedback..
© 2000 The Association of Attorney-Mediators
Problems with the site?
Contact webmaster@perpendicular.com
accesses since 5 July 2000