[WSBAPT] Disclosing Results of Failed Mediation

Wed Mar 20 13:59:54 PDT 2019

Paul, 

No I am not saying that. Nor am I saying that you should respond in kind because the other side raised the issue of mediating in bad faith. In my experience (having been on both sides of this issue), if you can demonstrate behavior that shows mediation was done in bad faith and it has a demonstrable effect on the litigation, then it can be raised. The issue is relevant to discovery compliance, rules compliance, attorneys’ fees, intransigence, etc.  

Rehashing the mediation and revealing disclosures made in mediation as a whole is not helpful and will likely be stricken. Addressing the allegation that your client has negotiated in bad faith deserves an appropriate response. The allegation doesn’t give the right to rehash the mediation or make disclosures not made by the other party. Making a specific allegation about conduct in mediation such as using false statements or doctored documents or alleging a party was abusive to a mediator does open the door to provide additional context and facts regarding the mediation itself. 

By way of personal example, my client walked out of a mediation that was going nowhere after an hour and half. The matter proceeded to litigation and the commissioner found that my client mediated in bad faith by walking out that quickly. On the flipside I have successfully offered as evidence in court, emails detailing mediation and settlement negotiations  to demonstrate that the mediation was not initiated in good faith and then was unsuccessful. The court accepted the communications as relevant to the issue of intransigence and contempt of a court order but did not consider the offers made.

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 <http://www.juliefowlerlaw.com/>  

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

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Paul Neumiller
Sent: Wednesday, March 20, 2019 1:24 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Disclosing Results of Failed Mediation

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?  

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 julie at juliefowlerlaw.com <mailto:julie at juliefowlerlaw.com> 
Sent: Wednesday, March 20, 2019 12:58 PM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com <mailto: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?

 / 

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