Use care with disclosure during mediation

Listen to this article

It could.

But it’s usually not.

Jeff Pitman said he’s never seen mediation used as a “fishing expedition,” partly because he guards against the possibility.

“I’m skeptical that it’s a pursuit thing, that the defendant or the opposing side is doing (mediation) so we can show our cards,” said Pitman, a personal injury attorney with Pitman, Kyle & Sicula S.C. in Milwaukee.

So, he said, “I’m cautious about what I will allow the mediator to disclose to the other side.”

Pitman usually avoids mediation unless the other side seems to be making a good faith effort, typically signaled by offering a reasonable settlement option.

His approach also depends on how the mediation is conducted.

Some mediators encourage the sides to exchange mediation statements, outlining what offers might be discussed or what goals they’d like to see met.

“I don’t provide the mediation settlement that I give the mediator to the other side,” Pitman said. “If I agreed to exchanging statements, there could be something going on.”

Like Pitman, Patricia Engel couches most everything about mediation in terms of good faith.

She also sees the potential for discovery abuse in mediation case. But, Engel said, she hasn’t seen that potential put to practice while representing families in special education mediation for Schott, Bublitz & Engel S.C. in Brookfield.

“Do people use mediation as a discovery tool? Sure, they could. I guess that’s why I preface my statements with, ‘If people come in good faith,’ ” Engel said. “Are we sincere about this or is this just a tool? Because if it’s a tool, I’m not interested.”

The process also is insulated from discovery abuse because parties must sign statements, often several pages long, which spell out confidentiality and limit any offers made in mediation from being used at a due process hearing.

“You can’t say, ‘At mediation you offered two more days of speech and language, therefore you must think I deserve it,’” Engel said.

But some worry there could be an exception.

Jane Burns deals with confidentiality issues as part of her work with the Wisconsin Special Education Mediation System, the state’s clearinghouse for special education mediation.

In the past, special education negotiations were absolutely protected.

But revisions written into the Individuals with Disabilities Education Act in 2004 might have changed that.

Under the bill, federal regulations require a resolution meeting within 15 days, if a parent files for a due process hearing. But the regulations do not say anything about confidentiality.

“A lot of attorneys, when the regulations first came out, were worried it would be a fact-finding mission,” Burns said.

There is a chance that Wisconsin law, which does cover confidentiality, could trump the federal regulation.

“If you’re going to go to a resolution meeting, you could say it’s part of a settlement process and apply the (Wisconsin) law. But no one knows if it would hold up,” Burns said.

So far, it’s a gamble few have been willing to take; many lawyers have advised families not to have a hearing and go directly to mediation.

Even if families chose to go forward, Burns said she has been reluctant to let mediators get involved.

“Without confidentiality, I didn’t want one of our mediators to be subpoenaed,” she said.

That issue could be unique to special education mediation.

Typically, communications in mediation are protected by state law, except to prevent injustice or in an instance where threats were made.

“The goal being, of course, to encourage alternative dispute resolution and encourage openness in mediation, because the words can’t be used against you,” said Susan A. Hansen, a Milwaukee attorney who handles collaborative divorces.

In collaborative divorce cases, which expound on the ADR model by using experts and information, not the adversarial process, to guide couples as they separate, discovery is further protected.

Not only are communications outside of court specifically protected through stipulation and order, but lawyers who do the mediation are not allowed to continue to trial, if a trial is needed.

“The communication dies with me,” Hansen said.

But, even beyond the scope of alternative dispute resolutions, state law prohibits references to settlement negotiations at trial.

“There are these layers of communication in the dispute resolution process that really have teeth. But even general, traditional lawyering offers protection,” Hansen said. “The idea is you want to be able to make an offer without it being thrown back at you in court.”