being subpoenaed as a mediator—how to avoid and what to do

Being Subpoenaed as a Mediator—

How to Avoid and What to do, When

Honorable Rick Morris Gene Roberts, Jr.

Agenda

•Why this topic?

•Judicial experience

•Law and ethics

•Tools for you

•Interactive questions

Question

If you have ever been subpoenaed to testify or to produce documents, if so, what did you do resist testifying?

Question

Have you ever been asked to voluntarily testify as a mediator?

Question

Does your agreement to mediate cover a request for you to testify in court?

Why this topic?

Judicial Experience

Law & Ethics

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. TCPRC 154.053(b)

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 be disclosed to anyone, including the appointing court. TCPRC 154.053(c)

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. TCPRC 154.073(a)

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. TCPRC 154.073(b)

If this section conflicts with other legal requirements for disclosure of communications, records, 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. TCPRC 154.073(e)

Ethical Guidelines for Mediators Texas Supreme Court (2011)

2. A mediator should protect the integrity and confidentiality of the mediation process…commences with the first communication to the mediator, is continuous in nature, and does not terminate upon the conclusion of the mediation.


6(a) The mediator should inform the parties that the mediation is confidential to the extent provided by law.


(8) A mediator should not reveal information made available in the mediation process, which information is privileged and confidential, unless the affected parties agree otherwise or may be required by law.


(8)(c) A mediator should maintain confidentiality with respect to communications relating to the subject matter of the dispute.


(1) A mediator is an impartial person.

(9) A mediator should be impartial toward all parties.

Smith v. Smith 154 F.R.D. 661 (N.D. Tex. 1994)

A subpoena duces tecum was served

on a state-court appointed mediator

to give testimony about allegations

of fraud in the signing of the MSA;

mediator moved to quash the

subpoena; federal law governs the

analysis and the court quashed the

subpoena duces tecum.

In re March, 1994—Special

Grand Jury 897 F. Supp. 1170 (S.D. Ind. 1995)

A mediator was subpoenaed to

testify before federal grand jury and

to produce documents to determine if

parties to the mediation made

statements that constituted false

claims in a criminal matter;

mediator privilege under Indiana

law did not apply to federal grand

jury proceedings. The motion to

quash was denied.

Pate v. Toto 2018 WL 7891240 (N.D. Ala. August 2,

2018)

A party subpoenaed mediator to

produce documents and sit for

deposition; motion to quash denied

because communications after the

mediation were not covered by

Alabama’s Civil Court Mediation

Rules that protect communications

during the mediation.

In re: Subpoenas Issued to

JAMS, Inc., 2018 WL 3559092 (S.D. N.Y. July 24,

2018)

Subpoenas issued to mediator and

mediation organization to produce

documents relating to alleged

threats made by a party at a

mediation; court required an in camera review of the mediator and

the organization’s notes before

quashing the subpoenas.

Gaskin v. Gaskin 2006 WL 2507319 (Tex. App.—Fort

Worth 2006)

A party subpoenaed mediator to

elicit testimony about MSA

language; mediator filed a motion to

quash which was granted by the trial

court and affirmed by the court of

appeals.

Humphrey v. Mesa

Operating Partnership 1999 WL 652500 (Tex. App.—Dallas

1999)

A party issued a subpoena to compel

production of law firm’s records

relating one of its attorney’s

activities as a mediator, seeking to

know dates and outcomes of

mediations and payments received

by the mediator; trial court denied a

motion to compel and that decision

was affirmed by the court of appeals.

Beddingfield v.

Beddingfield 2018 WL 6378553 (Tex. App.—Waco

December 5, 2018)

A party sued the law firm that

employed the mediator after MSA was

signed. From the opinion: “The

mediator had made the representation

based on information ‘apparently’

furnished by mom to him.” Daughter

alleged at a second mediation that mom

“through the mediator” was adamant

about the ownership of certain trusts.

Hill v. Shamoun & Norman 544 S.W.3d 724, 730 (Tex. 2018)

“There is disputed testimony as to who

negotiated the final settlement….Hill,

Benedict, and Judge Stickney—who

acted as mediator—testified that

Shamoun was not involved and did not

settle the web of litigation on May 5.

Judge Stickney testified that during

Shamoun's brief time at the mediation

on May 5, Shamoun said he was not

representing Hill in the mediation

because of a disagreement.”

Tools

Mediator Insurance

Agreement to Mediate

Motion to Quash

Order to Quash

Insurance issues (please ask your agent)

• Does mediator insurance cover costs and fees associated with

a subpoena?

• If so, what are the policy limits?

• Is it possible to purchase an endorsement or optional

coverage for responding to a subpoena?

• Does your policy require specific language to be in your

Agreement to Mediate?

Order Quashing Subpoena

• The subpoena objected to by Mediator is quashed.

• The testimony/request for documents shall not

take place.

• Mediator is entitled to reasonable and necessary

attorney’s fees in the amount of $ ____________.

• Mediator is entitled to costs in the amount of

$____________.

Thank you!

Hon. Rick Morris Gene Roberts, Jr.

(254) 718-3388 @GeneRoberts

judgerickmorris.com linkedin.com/in/robertsgene

[email protected] [email protected]

being subpoenaed as a mediator—how to avoid and what to do

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