The Tennessee case of McMahan v. McMahan, 2005 Tenn. App. LEXIS 756 (Tenn. App. 2005) is very instructive for mediators on how a mediator might testify as to party capacity without violating confidentiality. There’s also much more of value on other points in the opinion.
The Husband moved to enforce a handwritten mediation agreement which the Wife and Husband and their counsel signed or initialed, when the Wife attempted to repudiate the longhand agreement, arguing that it was not enforceable because of duress, lack of capacity, and that it was not intended to be an enforceable agreement.
The trial court held a hearing at which the mediator testified that Wife's mental condition did not appear impaired during the mediation. The appellate court found that the mediator in this case was careful not to testify to statements or assertive conduct made by Wife. She did not disclose confidential information or attempt to prove liability via conduct or statements made in the course of the mediation. The trial court then enforced the agreement and this was affirmed on appeal.
Florida Rules for Certified and Court-Appointed Mediators, Rule 10.310 (d), Self-Determination, Postponement or Cancellation provides that “If, for any reason, a party is unable to freely exercise self-determination, a mediator shall cancel or postpone a mediation.”
Florida Rules for Certified and Court-Appointed Mediators, Rule 10.420(b), Conduct of Mediation, Adjournment or Termination, provides that
A mediator shall:
(1) adjourn the mediation upon agreement of the parties;
(2) adjourn or terminate any mediation which, if continued, would result in unreasonable emotional or monetary costs to the parties;
(3) adjourn or terminate the mediation if the mediator believes the case is unsuitable for mediation or any party is unable or unwilling to participate meaningfully in the process;
(4) terminate a mediation entailing fraud, duress, the absence of bargaining ability, or unconscionability; and
(5) terminate any mediation if the physical safety of any person is endangered by the continuation of mediation.
[Emphasis added.]
While we’re to be non-judgmental as between the parties, aren’t mediators making “judgment calls” all the time? Take a look at how the mediator was permitted to testify and reconcile the testimony with the above rules.
To email me, click Perry S. Itkin.
