[WSBAPT] Disclosing Results of Failed Mediation

[Paul Neumiller]

So Julie, you are saying that by the opposing party making that statement, the opposing party waives the privilege of mediation communications and I can now bring in affidavits establishing that it was the other party who failed to mediate in good faith?


[cid:image003.jpg at 01D4DF20.0F442A20]



From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of julie at juliefowlerlaw.com
Sent: Wednesday, March 20, 2019 12:58 PM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Disclosing Results of Failed Mediation

Actually, you can’t disclose offers to be held against a party, but you can discuss things that occurred at mediation if it’s material to the issue at hand. Just as you can disclose communications that detail settlement offers if used for a purpose other than showing the offer. It’s up to the judge to give it any weight. Some judges consider it and some don’t. I’ve raised the issue of failure to mediate in good faith. Just as I’ve defended that claim. The outcome depends on the facts and whether the mention of the mediation has relevance to the issue currently before the judge. Dragging out litigation is a common tactic to financially wear down the other party so failure to mediate in good faith can be relevant to the litigation as a whole.

You can raise ER 408 but also defend the allegation instead of relying on the rule. Once it’s open you can bring up what occurred at mediation as well.

Julie K. Fowler

Law Office of Julie K. Fowler, P.S.
14205 SE 36th Street, Ste 100
Bellevue, WA 98006
(425) 990-9975 (o)  ~  425-451-2687 (f)
julie at juliefowlerlaw.com<mailto:julie at juliefowlerlaw.com>
www.juliefowlerlaw.com<https://eur04.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.juliefowlerlaw.com%2F&data=02%7C01%7C%7Ca946225687f5425c68d608d6ad6f0373%7C84df9e7fe9f640afb435aaaaaaaaaaaa%7C1%7C0%7C636887089640181144&sdata=5UyeWnn9QnD6Qvmq3h9ynp9U16TixHiJaap7M%2Ffbhzw%3D&reserved=0>

~ OFFICE HOURS ~  9:30 am - 3:30 pm

From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of Paul Neumiller
Sent: Wednesday, March 20, 2019 11:09 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] Disclosing Results of Failed Mediation

Listservers:  Long story short:  TEDRA action.  One party invoked mediation.  Mediation failed.  Another party attempts to invoke arbitration.  In resisting the arbitration, a party to the failed mediation states in a pleading to the court that  “Mr. X refused to negotiate in good faith at mediation and is now attempting to wear Parties Z down financially by demanding arbitration.”

Whoa Nellie.   Not only is the statement untrue BUT I thought it was a violation to express anything more than the “mediation failed” but to not assert blame or a cause for the failure.  Isn’t there some rule out there to strike this statement?


[Paul A  Neumiller]



 /
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbapt/attachments/20190320/8431881e/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image003.jpg
Type: image/jpeg
Size: 12625 bytes
Desc: image003.jpg
URL: <http://mailman.fsr.com/pipermail/wsbapt/attachments/20190320/8431881e/image003.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image004.jpg
Type: image/jpeg
Size: 8213 bytes
Desc: image004.jpg
URL: <http://mailman.fsr.com/pipermail/wsbapt/attachments/20190320/8431881e/image004.jpg>