Mediator's Extrinsic Evidence Inadmissible

In the 2008 Indiana case of Fackler v. Powell, the parties took part in a mediation which resulted in an agreement that was approved by the court. When the husband did not pay a promissory note (to a third party), litigation was commenced. (This case went to the Indiana Supreme Court at least one other time, and there were numerous post-divorce motions filed and litigated.)

At one of the hearings, the mediator was called to testify about the terms of the agreement. Ultimately, the court found that the testimony should not have been admitted, partially because the agreement in the eyes of the court was not really ambiguous, but also due to the fact that the mediation was confidential and that confidentiality could not be breached in this case.

Indiana ADR Rule 2.11 provides that "[m]ediators shall not be subject to process requiring the disclosure of any matter discussed during the mediation, but rather, such matter shall be considered confidential and privileged in nature. The confidentiality requirement may not be waived by the parties, and an objection to the obtaining of testimony or physical evidence from mediation may be made by any party or by the mediators."

This is similar to the new Rule 514, Maine Rules of Evidence, (eff. 1/1/10) that created a mediator privilege which states that "(a)ll memoranda and other work product, including files, reports, interviews, case summaries, and notes, prepared by a mediator shall be confidential and not subject to disclosure in any subsequent judicial or administrative proceeding involving any of the parties to any mediation in which the materials are generated; nor shall a mediator be compelled to testify in any subsequent judicial or administrative proceeding concerning a mediation or to any communication made between him or her and any participant in the mediation process in the course of, or relating to the subject matter of, any mediation."

Also on January 1, 2010, the Maine Supreme Court extended the Rule 408 bar on admission of conduct or statements in mediation to all mediation "undertaken to comply with any statute, court rule, or administrative agency rule or in which the parties have been referred to mediation by a court, administrative agency, or arbitrator or in which the parties and mediator have agreed in writing or electronically to mediate with an expectation of confidentiality, is not admissible for any purpose other than to prove fraud, duress, or other cause to invalidate the mediation result in the proceeding with respect to which the mediation was held or in any other proceeding between the parties to the mediation that involves the subject matter of the mediation." Previously, Rule 408 only prohibited such evidence in court sponsored domestic mediation sessions.

There are also exceptions in Rule 514 mediator privilege that allow the testimony of the mediator, such as a plan to inflict harm or the furtherance of a crime or fraud. But I think that the Maine courts with our rules would have reached the same result as the Indiana court, i.e., the mediator's testimony would have been excluded.

So far, in Maine we have had very few cases involving parties seeking to pierce the veil of confidentiality surrounding mediation, but as mediation continues to be a hugely important part of our practice, we will surely see more. However, our Supreme Court has adopted rules, with appropriate safeguards, which essentially say "What happens in mediation, stays in mediation."