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,
(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. 5th DCA 2005]. It’s an interesting analysis and is relevant to what we do.
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