Mediator Testifies

The Facts: A volunteer mediator for a community mediation center conducted a Zoom mediation in a domestic case over the issue of parenting time. Each party had an attorney, although the attorneys were not present in the mediation. The parties reached an agreement, after the father checked in by phone with his attorney. The mediator asked each party to read half of the agreement while the other listened, to ensure that the document comprised their full agreement. The parties signed the agreement. The father subsequently claimed that the agreement omitted a provision on parenting time during the summer that the parties had discussed. Father’s attorney apparently had a conversation with center staff that lead the attorney to believe that the mediator would agree with hhis position. So the father made a motion to amend the mediation agreement, and subpoenaed the mediator to testify.

The Hearing: At the hearing this week, the parties produced a waiver of confidentiality, permitting the mediator to testify. (See MCR 2.412(D)(1)). The mother’s attorney argued that the mediation agreement was complete. When questioned by father’s attorney, the mediator said he could not recall whether the parties discussed summer parenting time, so the father’s attorney withdrew the motion.

The Learnings: No one welcomes a subpoena, especially mediators being asked to testify about what happened in a mediation. Mediation is generally confidential, and mediators can challenge on that ground, but when the parties waive confidentiality, the mediator lacks a legal reason not to testify.

In this case, the mediator did not know until the hearing that the parties had waived confidentiality. The mediator could have contacted mother’s attorney to hear her view of the father’s motion, in which case the mediator might have learned about the waiver. Perhaps the mediator could’ve contacted the father’s attorney to encourage him to find some other way to resolve this issue besides having the mediator testify. If the parties’ agreement had included a clause in their agreement to the effect that any issues that arise in implementing the agreement would be resolved through mediation, perhaps the hearing could have been avoided altogether, and the parties could have returned to mediation to resolve the matter.

I know of only a few cases where mediators have actually testified. Usually it’s a situation like this where the parties have waived confidentiality, but occasionally the mediator wants to testify to clarify an erroneous assertion made by a party. To preserve the general confidentiality of mediation, it seems like it’s best for mediators to refrain from testifying if possible.