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Anne’s attorney, Bob, always knew that mediation is a can’t-lose proposition. Either the mediation leads to a settlement or, if no settlement, everyone walks away with a better understanding of the strengths, weaknesses, theories, strategies and positions of all sides. This brings us to Bob, who decided to put this proposition into practice.

Last month, Bob and Anne went to mediation to try to settle Anne’s long-standing diversion-of-assets claim against John, her former business partner. No settlement. But Bob and Anne learned a lot about John’s defenses and theories, particularly his attempt to undercut Anne’s loss-of-opportunity damage theory because a large portion of John’s 15-page “mediation memo” critiqued this theory.

Bob wanted to take full advantage of everything he learned during the mediation. So he decided to provide Anne’s damages expert with a copy of John’s mediation memo. Bob figured the best way to anticipate John’s responses to Anne’s expert was to give John’s own written assertions to the expert. Anne’s expert then would be able fully to rebut each point in John’s mediation memo.

Satisfied with his creative litigation strategy, Bob could not wait until Anne’s expert at deposition referred to John’s mediation memo as a document that she reviewed in preparing her report. In response to this testimony, John’s lawyer surely would be hamstrung; he would not be able to contend that the mediation memo – his own work product – was filled with errors.

Bob’s strategy backfired. He initially was surprised, but not concerned, when John moved to strike Anne’s expert altogether. That, Bob reckoned, was an over-the-top litigation strategy that would serve only to aggravate the judge. But Bob’s surprise turned into a nightmare when the court granted John’s motion, struck Anne’s damages expert and awarded costs and attorney fees of $1,000 to John.

Particularly unsettling was the fact that Bob acknowledged as true the facts set forth in the court’s opinion. Bob agreed that he had supplied Anne’s damages expert with John’s mediation statement. He agreed that Anne’s damages expert had reviewed John’s mediation memo – for “context” – in rendering her expert opinions. He agreed that the parties’ mediation agreement had said that all mediation submissions were confidential and that neither party could use those submissions at trial. And he agreed that at trial he had no intention of introducing into evidence or referring to John’s mediation memo. Nevertheless, Bob disagreed with the court’s conclusion that these facts compelled striking the report and the expert herself.

Bob forgot that mediation is a confidential process that works only because the parties rely on the frank, candid and bluntly honest participation of everyone in the process. If anyone in the process senses that his or her statements, written or oral, later could be used in any other context, he or she then will do what anyone else does when there is a risk that a communication could be publicized – clam up and thereby undermine the chance that the mediation will be productive. As one court so colorfully has stated in the context of a counsel-only settlement conference:

If participants cannot rely on the confidential treatment of everything that transpires during these sessions then [the participants] of necessity will feel constrained to conduct themselves in a cautious, tight-lipped, non-committal manner more suitable to poker players in a high-stakes game than to adversaries attempting to arrive at a just resolution of a civil dispute.

One federal district court, in rejecting the argument that striking an expert for having read the adversary’s mediation memo for “context” was too severe, stated that “there is no adequate way to assess the impact the mediation briefs had on the experts, and how the experts may have shaped their evaluations consciously or unconsciously in response to the claims made and positions taken by defendants in their mediation briefs.” The court recognized that sharing the mediation memo struck “at the heart of the ADR process. Striking an expert witness is a harsh remedy, but not an unfair one, where a party has placed its experts at risk by infusing them with knowledge to which they were not entitled.”

Another district court likewise rejected the assertion that sharing mediation communications with an expert is not prejudicial. Recognizing that “strong public policy considerations favor a confidential mediation process,” this court concluded that the mediation process was tainted when the plaintiffs exposed their expert to mediation statements that the other side had made. “By doing so, plaintiffs have introduced to the adjudicative process matters that are supposed to be shielded from the court.”

These two district courts were disturbed not only at the offending party’s flouting of the confidentiality of the mediation process. They also were upset that the party, in sharing a mediation submission with an expert, had ignored a mediation agreement that proscribed such sharing. This raises a question, which Bob forgot to mention in his response to John’s motion: Will a court strike an expert who reads the other side’s mediation memo where, as happened in Bob’s case, the parties did not enter into a mediation agreement? Put another way, should a court strike a party’s expert where the party, in providing an expert with a mediation document, has “merely” disregarded the principle that all mediation submissions must be kept confidential?

CHARLES F. FORER is a member in the Philadelphia office of Eckert Seamans Cherin & Mellott, where he is engaged in all types of alternative dispute resolution. He is a former co-chairman of the Philadelphia Bar Association’s alternative dispute resolution committee, and he is a frequent lecturer and writer on the use of ADR in a variety of settings. He can be reached at 215-851-8406 and by e-mail at [email protected].

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