“What Were You Thinking?!?”

Have you ever wondered [or just thought about] whether, as a Mediator, you would be subpoenaed to testify, not about what was said during a mediation conference, but rather what you were thinking about on a particular point or points, i.e. to probe your thought process? After all, we do think during a mediation, right? For example, Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.310, Self-Determination, provides in part:

(d) Postponement or Cancellation. If, for any reason, a party is unable to freely exercise self-determination, a mediator shall cancel or postpone a mediation.

Who has the responsibility to think about whether the mediation should be cancelled or postponed? We do [but you knew that]!

Some “thoughtful” guidance can be found in the Fifth District Court of Appeal case of Department of Highway Safety, etc., et al. v. Marks, 30 Fla. L. Weekly D 780 [Fla. 5^th DCA 2005]. It’s an interesting analysis and is relevant to what we do.

To email me, click Perry S. Itkin.