LAW IS COMPLICATED. EVEN MEDIATING IS COMPLICATED.

There is a nasty rumor out there that lawyers are not popular people.  The most some people will give us is that we are a necessary evil.  That “necessity” surely comes from the complicated nooks and crannies in the legal landscape, which are becoming more complicated, it seems, with every action or non-action of the legislatures.

Take mediation for example.  All kinds of statements will be made in trying to get the other side to settle.  Documents might even be put forward.  But if mediation fails, will those statements be admissible in evidence later? Naturally, it depends.

For one thing, it will depend on which court is hearing the matter.  Florida has enacted a Mediation-privilege statute, so if judicial proceedings are in front of Jacksonville’s Florida state courts, statements uttered during mediation will not come in.

There is no statutory privilege in federal law though, and judges have been struggling in deciding whether or when to protect mediation statements.  So in federal courts, it can depend on what type of mediation was involved.  Did mediation occur before or as part of litigation? And was mediation held before a true neutral, or was it an “ombudsman” mediation?  Indeed, several companies have taken to submit disputes with their employees to mediation by an ombudsman, a nominally confidential neutral handling complaints from receipt to resolution, including mediation.  But are the “ombudspersons” (the gender-neutral term is slowly making its way into literature) really neutral? Courts will look at such factors as who pays them, and whether they are employed by a mediation firm or the company itself.  The answers to those questions will bear on the protection afforded to statements made in mediation.

Even mediations held during the pendency of an appeal may give rise to those vexing questions.  True, an appeal is taken from the record before the trial court.  So nothing from the later-held mediation would be seen by the appellate panel.  But what if the Court of Appeals’ decision is to remand the case – that is, send it back for another round before the trial court? The statements made during that mediation will become part of the evidentiary tangle.

In the end, it may be… well, necessary, to rely on a competent attorney knowledgeable on the rules in the relevant jurisdiction.