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Click here for the full text of this decision FACTS:Le Earl Bryant hired Fredye Mac Long (later known as Fredye Long Alford) to represent her in litigation against a roofing contractor. The suit settled in mediation except for attorneys’ fees, which were left to the trial court. The trial court ruled that each party was to bear its own costs and attorneys’ fees. Bryant then sued Long for legal malpractice. She argued that Long didn’t disclose the risks and benefits of settlement, including the fact that the trial court could rule that Bryant be forced to bear her own attorneys’ fees. Long said that she did discuss the risks with Bryant, though the only people who would know this were Bryant, Long and the mediator. At trial, Long attempted to elicit testimony about the conversation she had with Bryant from the mediator, but the trial court disallowed the testimony, citing the confidentiality provisions of Texas alternative dispute resolution procedures found in Civil Practice & Remedies Code �154.053. Long appeals. HOLDING:Reversed and remanded. Section 154.053 says that a mediator cannot disclose information given in confidence unless expressly authorized by the party supplying the information. Civil Practice & Remedies Code �154.073 states a mediator is generally not required to testify in a proceeding relating to or arising out of the matter in dispute. The court notes that in 2002, it decided that when a tort is alleged to have been committed during an ADR procedure, and the tort encompasses the duty to disclose, �154.073 did not bar discovery of the claim where the trial judge found that disclosure was warranted in light of the facts. It did not decide, however, whether a mediator can be compelled to testify or respond to discovery. Two critical policy considerations must be taken into account: encouraging peaceful resolution of disputes through voluntary settlement procedures, and confidentiality. Though mediation confidentiality statutes have not been accorded the status of privileges by case law, the court finds those cases helpful in analyzing certain situations where privileges have been held not to be absolute. For instance, statutory privileges may be waived by the holder of the privilege. “Before a party may be found to have waived an asserted privilege, a court must determine that: (1) the party asserting the privilege is seeking affirmative relief; (2) the privileged information sought is such that, if believed by the fact finder, in all probability it would be outcome determinative of the cause of action asserted; and (3) disclosure of the confidential information is the only means by which the aggrieved party may obtain the evidence.” The court first notes that Bryant’s new cause of action involves Long’s alleged legal malpractice during the mediation proceedings. In seeking the mediator’s testimony in order to defend against this claim, Long will not disturb the settlement in the original litigation with the roofing contractor. From a policy standpoint, these considerations support disclosure of the confidential communication at issue, the court finds. Then, applying the enumerated standards, the court finds that the elements for the offensive use doctrine would be met if the attorney-client privilege were at issue, and because mediation confidentiality statutes are grounded on similar policy rationales, the elements would be met in the mediation context, too. “First, Bryant sought affirmative relief in the form of a money judgment from her attorney. Second, the information sought was likely outcome determinative. Long testified that during the confidential conversation at issue, only Long, Bryant, and the mediator were present. The testimony of the mediator can hardly be deemed cumulative, as Bryant claims, when the only other evidence available to the fact-finder constituted a veritable swearing match between the two litigants. The mediator’s testimony in this case would be crucial in getting to the heart of the advice rendered, or not rendered, by attorney Long to Bryant. Third, due to the fact that only those three were present, the mediator’s testimony is the principle means by which attorney Long can obtain and present unbiased and critical evidence to the trier of fact.” OPINION:Richter, J.; Moseley, O’Neill, and Richter, JJ.

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