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Evidence — mediation

By: WISCONSIN LAW JOURNAL STAFF//November 6, 2014//

Evidence — mediation

By: WISCONSIN LAW JOURNAL STAFF//November 6, 2014//

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U.S. Court of Appeals for the 7th Circuit

Civil

Evidence — mediation

Under sec. 904.085(4)(e), statements made during mediation cannot be introduced into a bankruptcy proceeding to prove the settlement was the product of fraud.

“Wisconsin’s mediation privilege statute provides a party to a mediated agreement with contractual remedies based upon the written agreement. See Wis. Stat. § 905.083(4)(a) (providing that § 905.085(3) ‘does not apply to any written agreement, stipulation or settlement made between 2 or more parties during or pursuant to mediation’). The Wisconsin legislature could have chosen to incorporate more exceptions into its statute. The Uniform Mediation Act, drafted after Wisconsin adopted § 904.085 in 1993, for example, contains an express exception allowing a party to admit evidence of mediation communications for the purpose of ‘prov[ing] a claim to rescind or reform or a defense to avoid liability on a contract arising out of the mediation.’ See Uniform Mediation Act, The National Conference of Commissioners on Uniform State Laws, § 6(b)(2), available at http://www.uniformlaws.org/Act.aspx?title=Mediation Act (last visited Oct. 30, 2014). Although one might contend it is unjust that a person like Doe cannot recover if he was in fact fraudulently induced into signing a settlement agreement, our task is to apply the Wisconsin statute as it is written. Cf. Rojas v. Superior Court, 93 P.3d 260, 265 (Cal. 2004) (holding California mediation privilege was not subject to ‘good cause’ exception because only exceptions to mediation confidentiality were those expressly provided in statute); Princeton Ins. Co. v. Vergano, 883 A.2d 44, 64 (Del. Ch. 2005) (declining to allow mediator testimony where plaintiff maintained mediation settlement induced by fraud, rejecting argument that the need to remedy a possible fraud outweighed public policy interest served by enforcing mediation agreements calling for confidentiality). The Wisconsin legislature balanced competing interests to further the statute’s goal of ‘quickly, fairly, and voluntarily’ resolving disputes, Wis. Stat. § 904.085(1), when it crafted § 904.085, and we conclude the statute does not allow the admission of communications made during the mediation here because the disputes in mediation and in Doe’s bankruptcy proof of claim are not distinct. As a result, summary judgment in the Archdiocese’s favor was proper, as was the resulting order disallowing Doe’s claim.”

Affirmed.

13-3783 Doe v. Archdiocese of Milwaukee

Appeal from the United States District Court for the Eastern District of Wisconsin, Randa, J., Williams, J.

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