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Disputing Irony: A Systematic Look at

Litigation About Mediation
James R. Coben & Peter N. Thompson†

Introduction and Principal Conclusions . . . . . . . . . . . . . . . . . . . . . 45 R

I. Constructing a Database . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 R
A. Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 R
B. Raw Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 R
C. Level of Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 R
D. Subject Matter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 R
E. Mediation Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 R
II. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 R
A. Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 R
B. Uncontested Mediation Evidence . . . . . . . . . . . . . . . . . 59 R
1. Mediator Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 R
2. Evidence of Mediation Communications
from Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 R
C. Contested Mediation Evidence . . . . . . . . . . . . . . . . . . . . 63 R
1. Confidentiality Upheld . . . . . . . . . . . . . . . . . . . . . . . . 64 R
2. Confidentiality Not Upheld . . . . . . . . . . . . . . . . . . . 66 R
D. Context of Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . 68 R
III. Enforcement of Mediated Settlement Agreements . . . . . 73 R
A. Description of Enforcement Cases . . . . . . . . . . . . . . . . 73 R
B. Unsuccessful Enforcement Cases . . . . . . . . . . . . . . . . . 74 R
C. Traditional Contract Defenses . . . . . . . . . . . . . . . . . . . . 77 R
1. General Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 R
2. Specific Defenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 R
a. No Meeting of the Minds; Agreement to
Agree . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 R

† James R. Coben, Associate Professor of Law and Director, Dispute Resolution

Institute, Hamline University School of Law, and Peter N. Thompson, Professor of
Law, Hamline University School of Law. The authors thank our friend and colleague
Bobbi McAdoo for her support throughout this project and her insightful comments
which helped considerably to bring this massive collection of data into some focus. We
also thank Jason Geer, a student at the Hamline University School of Law who has
served as our technical assistant/tutor and research assistant. He has provided won-
derful advice and assistance at all stages of this project. We also thank Mark Betters,
Amanda Fosness and Rachael Severson, law students at Hamline University School
of Law who provided immeasurable help in research, data collection, and analysis.

43
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44 Harvard Negotiation Law Review [Vol. 11:43

b. Fraud/Misrepresentation . . . . . . . . . . . . . . . . . . 80 R
c. Duress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 R
d. Undue Influence . . . . . . . . . . . . . . . . . . . . . . . . . . 83 R
e. Mistake . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 R
f. Unconscionability . . . . . . . . . . . . . . . . . . . . . . . . . 86 R
g. Technical Defenses . . . . . . . . . . . . . . . . . . . . . . . . 87 R
h. Other Defenses . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 R
IV. Conduct of Participants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 R
A. Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 R
B. Attorney Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 R
1. Attorney Misconduct as a Defense to
Enforcement Claims . . . . . . . . . . . . . . . . . . . . . . . . . . 90 R
2. Attorney Ethics and Malpractice . . . . . . . . . . . . . . 92 R
C. Mediator Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 R
1. Mediator Misconduct as a Defense to
Enforcement Claims . . . . . . . . . . . . . . . . . . . . . . . . . . 95 R
2. Mediator Ethics and Malpractice—Actions
Against the Mediator . . . . . . . . . . . . . . . . . . . . . . . . . 98 R
D. The Special Challenges Posed by Hybrid
Processes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 R
E. Judicial Ethics and Malpractice . . . . . . . . . . . . . . . . . . . 102 R
V. Duty to Mediate/Condition Precedent . . . . . . . . . . . . . . . . . 105 R
A. Judicial Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 R
B. Contractual Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . 108 R
C. Statutory Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 R
D. Consequences of Non-Participation . . . . . . . . . . . . . . . 110 R
VI. Fees and Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112 R
A. Allocating the Cost of Mediation Participation . . . . 112 R
B. Fees as a Sanction for Failure to Mediate or
Other Inappropriate Acts . . . . . . . . . . . . . . . . . . . . . . . . . 115 R
C. Fees for the Case as a Whole . . . . . . . . . . . . . . . . . . . . . 116 R
VII. Sanctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 R
A. Sanctions and the Duty to Mediate . . . . . . . . . . . . . . . 119 R
B. Sanctions for Breach of Confidentiality . . . . . . . . . . . 122 R
VIII. The Mediation-Arbitration Connection . . . . . . . . . . . . . . . . 123 R
A. Enforcing Pre-Dispute Mediation/Arbitration
Clauses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125 R
B. Waiver of Right to Arbitrate Through
Mediation Participation . . . . . . . . . . . . . . . . . . . . . . . . . . . 127 R
IX. Miscellaneous Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127 R
A. Procedural Implications of a Mediation Request
or Participation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 R
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Spring 2006] Disputing Irony 45

B. Acts or Omissions in Mediation as Basis for

Independent Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131 R
C. Insurance Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134 R
X. Lessons Learned . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135 R
A. Statute and Rule Reform . . . . . . . . . . . . . . . . . . . . . . . . . 135 R
1. Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135 R
2. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136 R
3. Taxation of Mediation Costs . . . . . . . . . . . . . . . . . . 138 R
B. Best Practice Recommendations . . . . . . . . . . . . . . . . . . 138 R
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143 R
Appendix A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145 R

INTRODUCTION AND PRINCIPAL CONCLUSIONS

This is a time of reassessment. Although mediation has been in-
stitutionalized successfully in courts and other contexts,1 questions
abound regarding its impact and effectiveness.2 A universal com-
plaint is the lack of relevant empirical data.3 Numerous scholars

1. See generally Bobbi McAdoo & Nancy A. Welsh, Look Before You Leap and
Keep on Looking: Lessons from the Institutionalization of Court-Connected Mediation,
5 NEV. L.J. 399 (2005); Stephen N. Subrin, A Traditionalist Looks at Mediation: It’s
Here to Stay and Much Better Than I Thought, 3 NEV. L.J. 196 (2003); Sharon Press,
Institutionalization of Mediation in Florida: At the Crossroads, 108 PENN ST. L. REV.
43 (2003).
2. See, e.g., Deborah R. Hensler, Suppose It’s Not True: Challenging Mediation
Ideology, 2002 J. DISP. RESOL. 81, 81 (2002) (asserting that evidence to support the
claim that mediation saves courts and litigants time and money “has failed to materi-
alize”); Jacqueline M. Nolan-Haley, The Merger of Law and Mediation: Lessons from
Equity Jurisprudence and Roscoe Pound, 6 CARDOZO J. CONFLICT RESOL. 57, 59 (2004)
(asking whether “court-connected mediation [has] lost its way on the road to justice”
by becoming “so intertwined with litigation and adjudication as to be indistinguish-
able from judicial settlement processes or traditional bilateral negotiations”); Lela P.
Love, Preface to the Justice in Mediation Symposium, 5 CARDOZO J. CONFLICT RESOL.
59, 59 (2004) (observing that a symposium created to celebrate the contributions of
mediation to our system of justice instead ended up highlighting the dissonance “be-
tween what mediation promised and what is being delivered”); Joseph P. Folger, “Me-
diation Goes Mainstream”—Taking the Conference Theme Challenge, 3 PEPP. DISP.
RESOL. L.J. 1, 31 (2002) (opining that institutionalization of mediation has diminished
the defining “alternative” characteristics of the mediation process and has tended to
turn mediation into a forum for dispute resolution that is highly directive and evalua-
tive in the service of reaching settlements); Nancy A. Welsh, The Thinning Vision of
Self-Determination in Court-Connected Mediation: The Inevitable Price of Institution-
alization?, 6 HARV. NEGOT. L. REV. 1, 5 (2000) (noting that “the party-centered em-
powerment concepts that anchored the original vision of self-determination are being
replaced with concepts that are more reflective of the norms and traditional practices
of lawyers and judges, as well as the courts’ strong orientation to efficiency and clo-
sure of cases through settlement”).
3. See, e.g., Frank E. A. Sander, Some Concluding Thoughts, 17 OHIO ST. J. ON
DISP. RESOL. 705, 706 (2002) (calling it remarkable “how little we know about many
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46 Harvard Negotiation Law Review [Vol. 11:43

have called for new research to help determine what is occurring in

the mediation process.4 Of course, mediations tend to be private, and
it is difficult to determine what is going on behind closed doors. Re-
searchers attempt to recreate what happened through surveys and
interviews of participants after the mediation. These surveys and in-
terviews are quite useful, but they are scarce and address a small
sample of the mediation experience. Furthermore, surveys and inter-
views yield information filtered through the subjective perceptions of
the participants and researchers.5 Some courts keep general statis-
tics, but these are incomplete.
Largely overlooked in the discussion to date is one extremely
large database—the reported decisions of state and federal judges
forced to confront legal disputes about mediation. Learning about
the mediation process by studying the adversarial opinion that the
ADR process was designed to avoid may be ironic, but it can be pro-
ductive. Admittedly, a written trial or appellate court decision is by
no means a perfect window into the world of mediation. Only the

issues that are basic to ADR”); Jean Sternlight, ADR is Here: Preliminary Reflections
on Where it Fits in a System of Justice, 3 NEV. L.J. 289, 297 (2003) (finding it “shock-
ing how little we actually know about what disputants want, and what they perceive
to be fair”); Deborah R. Hensler, Our Courts, Ourselves: How the Alternative Dispute
Resolution Movement is Re-Shaping Our Legal System, 108 PENN ST. L. REV. 165, 192
(2003) (noting that only a few empirical studies actually report what happens in
court-annexed mediation); Thomas J. Stipanowich, ADR and “The Vanishing Trial”:
What We Know—And What We Don’t, DISP. RESOL. MAG., Summer 2004, at 7, 7 (as-
serting “that federal and state court-connected ADR programs are ubiquitous, [but]
statistical information on their performance and impact on the litigation process is
fragmentary”).
4. See, e.g., Roselle L. Wissler, The Effectiveness of Court-Connected Dispute
Resolution in Civil Cases, 22 CONFLICT RES. Q. 55, 82 (2004) (reviewing empirical
research on mediation and neutral evaluation and concluding that future studies are
needed to address critical gaps including “litigation context’s impact on the efficiency
and effectiveness of court-connected mediation”); Deborah R. Hensler, ADR Research
at the Crossroads, 2000 J. DISP. RESOL. 71, 78 (2000) (bemoaning a growing indiffer-
ence and, in some cases, hostility to empirical research on ADR and calling for re-
newed vigor “to test our assumptions about what ADR is, and about what it can do,
about whom it benefits, about its public and private costs, and about its contributions
to the fair resolution of civil disputes”); Sander, supra note 3, at 706–08 (proposing a R
research agenda to examine mediation cost effectiveness, mediation satisfaction, the
correlation between training and performance, the value of co-mediation, implications
of mandatory mediation, and the importance of confidentiality); John Lande, Com-
mentary, Focusing on Program Design Issues in Future Research on Court-Connected
Mediation, 22 CONFLICT RES. Q. 89, 97 (2004) (urging a research agenda that focuses
on program design choices rather than “trying to establish the general efficacy of me-
diation programs”).
5. See ROBERT SOMMER & BARBARA SOMMER, A PRACTICAL GUIDE TO BEHAVIORAL
RESEARCH: TOOLS AND TECHNIQUES 156 (2002) (discussing the limitations of research
through questionnaires).
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Spring 2006] Disputing Irony 47

rare mediated dispute shows up in a reported opinion. Moreover,

court opinions, particularly appellate court opinions, do not provide a
full picture of the conflicts faced by the parties. Still, given the oft-
expressed mediation objective of providing an alternative to the
traditional adversarial system, the phenomenon of mediation litiga-
tion is a “disputing irony”6 that warrants closer examination. Indeed,
much can be learned from these “failed” mediations.
Our study is designed to address several questions. First, to
what extent does the mediation process create, as opposed to resolve,
subsequent litigation? Where is this litigation taking place, and
what issues are being litigated? What can we learn from the litigated
cases about the fairness of the mediation process and about the
proper roles and conduct for counsel and for the mediator? Finally,
how are the courts dealing with the conflict between the need for con-
fidentiality in the mediation process and the need for evidence when
mediation conduct becomes an issue in subsequent litigation?
Organizing and synthesizing the data we collected was a chal-
lenge. Given the volume of decisions, we have not listed every cita-
tion available to support a particular point. However, interested
readers may download the entire dataset without charge by visiting
the Hamline University School of Law website at http://www.ham
line.edu/law/adr/mediationcaselawproject.7 We invite other re-
searchers to provide additional analysis and criticism. The data we
accumulated can be analyzed from a number of different perspec-
tives. Our principal conclusions are as follows.
First, we did not anticipate the sheer volume of litigation about
mediation. As detailed below in Part I, we have analyzed all 1223
state and federal court mediation decisions available on the Westlaw
databases “allstates” and “allfeds” for the years 1999 through 2003.
In this five-year span when general civil case loads were relatively

6. See Lyons v. Booker, 982 P.2d 1142, 1143 (Utah Ct. App. 1999) (stating the
fundamental irony inherent in every litigated mediation conflict—that “the parties
find themselves in the unenviable position of having created an additional dispute on
top of the previously existing one”).
7. The dataset is organized as a searchable Excel file, and you can easily com-
pile lists of cases by mediation issue, jurisdiction, level of court, or a wide number of
other variables. Cross-tab functions within the Excel program (available as “Filter”
options in the Excel “Data” toolbar) allow you to quickly tailor searches and combine
variables (e.g., generate a list of state supreme court decisions where mediators testi-
fied and a mediated settlement was enforced; or a list of federal circuit court decisions
in a specific year which address mediation ethics). The dataset is a work in progress
that we will be updating each year. We encourage researchers to use the dataset and
ask only in return that you attribute it (James R. Coben & Peter N. Thompson, Ham-
line University School of Law Mediation Case Law Dataset) in any published work.
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48 Harvard Negotiation Law Review [Vol. 11:43

steady or declining nationwide, mediation litigation increased ninety-

five percent, from 172 decisions in 1999 to 335 in 2003.
Second, a major surprise from the database is how frequently
courts consider evidence of what transpired in mediations.8 The con-
cerns about confidentiality, paramount among ADR scholars, appear
to be of much lesser importance to practitioners, lawyers, and judges
in the context of adversarial litigation. As explained in Part II, there
are over 300 opinions in the database in which courts considered me-
diation evidence without either party raising confidentiality issues.9
Moreover, mediators offered testimony in sixty-seven cases, with ob-
jections raised only twenty-two times, and the evidence was pre-
cluded in only nine cases.10 This rather cavalier approach to
disclosure of mediation information is certainly at odds with the con-
ventional wisdom positing that confidentiality is central to the medi-
ation process.11
Third, the mediation issues being litigated are quite diverse.
Parts IV–X examine specific mediation issues, summarizing key
trends and providing illustrative examples. We expected, and indeed
found, large numbers of opinions about mediation confidentiality
(152), enforcement of mediated settlements (568), duty to mediate
(279), and sanctions (117). However, we did not anticipate the signif-
icant number of decisions addressing mediation fee and cost issues
(243), ethics/malpractice (98), the intersection between mediation
and arbitration (88), the procedural implications of a mediation re-
quest or participation (50), or acts or omissions in mediation as a ba-
sis for independent claims (20).
Equally surprising was the dearth of cases addressing mediator
misconduct, which was asserted as a contract defense only seventeen
times in five years.12 Either the concern about coercive mediators is
unwarranted or the litigation process does not provide an appropriate
forum to address this issue. Most of the enforcement cases raised
traditional contract defenses. One general conclusion to be drawn

8. Others have noted and documented this same phenomena. See, e.g., Peter
Robinson, Centuries of Contract Common Law Can’t Be All Wrong: Why the UMA’s
Exception to Mediation Confidentiality in Enforcement Proceedings Should be Em-
braced and Broadened, 2003 J. DISP. RESOL. 135, 164–65 (2003) (noting that it “may
be surprising that the vast majority of the time, when enforcing a mediated agree-
ment, courts act as if mediation confidentiality did not exist”).
9. See infra notes 40–60 and accompanying text. R
10. See infra notes 40–55 and accompanying text. R
11. See, e.g., Sander, supra note 3, at 708 (calling the importance of mediation R
confidentiality “[p]erhaps the most sacred canon in mediation”).
12. See infra notes 232–46 and accompanying text. R
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Spring 2006] Disputing Irony 49

from the dataset is that in litigation, existing legal norms force de-
fects in the mediation process to be framed in terms identical to those
used to address issues that plague unfacilitated party-bargaining.
Thus, when parties attempt to enforce mediation settlements in
court, the litigation focuses on typical contract issues, such as claims
of unenforceable agreements to agree, failure to have a meeting of the
minds, fraud, changed circumstances, and mistake.
These traditional contract defenses may not adequately protect
the fairness of the mediation process. As set forth in Part III, rarely
has a mediation participant successfully defended against enforce-
ment of a mediated agreement based on a traditional contract de-
fense. These contractual defenses were developed in the context of a
free enterprise bargaining process and may not be sufficient to en-
sure a fair facilitative process and a self-determined agreement.
In light of these trends and others, in Part X we make recommen-
dations for statute and rule reform, ranging from the use of “cooling
off” periods during which parties are free to exercise a right of rescis-
sion of a mediated settlement, to the adoption of special confidential-
ity rules regarding third party access to mediation evidence. We also
offer a number of best practice suggestions for advocates, neutrals,
and mediation consumers. Some discourage particular behavior,
such as over-promising on mediation confidentiality or continuing
mediation when decision-makers leave the room; others encourage
behavior, such as obtaining a signed agreement to mediate, aggres-
sively investigating and disclosing conflicts of interest, or anticipat-
ing that drafting releases may be difficult. The good news is that the
misery and expense incurred by the unfortunate parties forced to liti-
gate their mediation mistakes provide valuable lessons for those will-
ing to review them. By doing so, perhaps we can help others avoid
their own “disputing irony.”

I. CONSTRUCTING A DATABASE
A. Overview
We searched the Westlaw databases “allstates” and “allfeds” for
the term “mediat!” for the years 1999 to 2003 and found a total of
8127 entries. After reviewing the Westlaw summary results list for
each entry, we excluded opinions which merely referred to mediation
or a mediator. We read each of the remaining cases, but discovered
that many did not involve a significant mediation issue.13 Some of

13. Many reported cases in Michigan referred to a “mediation” process where the
parties would present their case to a case evaluation panel composed of three persons
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50 Harvard Negotiation Law Review [Vol. 11:43

the opinions used the term mediation or mediator, but upon closer
analysis were found to involve a neutral that acted as an arbitrator,
or even as a judge.14 Such cases were not included in the database.
We selected 1223 cases that implicated mediation issues and in-
cluded them in the database.15 For each of these cases, the authors
completed a questionnaire16 that reported information on a number
of variables.

who evaluate the case, providing “a separate award as to the plaintiff’s claim against
each defendant and as to each cross-claim, counterclaim, or third-party claim that has
been filed in the action.” MICH. COMP. LAWS ANN. 2.403(K)(2) (West 2006). A party
may reject the panel’s evaluation and proceed to trial, but if the verdict is less than
the award, the rejecting party is responsible for paying the opposing party’s actual
costs. MICH. COMP. LAWS ANN. 2.403(L)–(O). See H.A. Smith Lumber & Hardware
Co. v. Decina, 670 N.W.2d 729, 738 (Mich. Ct. App. 2003) (holding that mediation
sanctions could be imposed on the party rejecting the evaluation of the mediation
panel); Dessart v. Burak, 652 N.W.2d 669, 674 (Mich. Ct. App. 2002) (addressing me-
diation sanctions); Cheron, Inc. v. Don Jones, Inc., 625 N.W.2d 93, 97–98 (Mich. Ct.
App. 2000) (addressing mediation sanctions). We did not treat this evaluation process
as a mediation. Based on the recommendations of the Michigan Supreme Court,
Michigan amended its process in 2000 to include a mediation process referred to as
“facilitative mediation.” MICH. R. CIV. P. 2.411.
14. If the court referred to a “mediation” process involving a judge or court per-
sonnel, we treated the process as a mediation unless we could clearly determine that
the “neutral” did not act as a mediator. On the other hand, if the opinion referred to
the process as a judicial “settlement conference” we did not include the case in our
dataset even if the judge appeared to act as a facilitative neutral. See Cornell v. Delco
Elecs. Co., 103 F. Supp. 2d 1116, 1117 (S.D. Ind. 2000) (addressing an agreement
arrived at in “settlement conference” where Magistrate Judge acted as a “go-between
during negotiations”).
15. The research reflects the total number of opinions reported in Westlaw.
Some lawsuits involved multiple reported opinions. Because we wanted to study the
extent to which mediation issues were being litigated and addressed by the courts, we
treated each opinion involving a mediation issue as a separate entry. Consequently,
the total number of opinions/entries is greater than the number of lawsuits. We also
discovered that some decisions reported in LEXIS, usually trial decisions, are not re-
ported in Westlaw and many Westlaw opinions are not reported on LEXIS. Perform-
ing a similar word search from 1999 through 2003 using the term “mediate!” we found
7980 total cases on LEXIS (4779 state cases and 3201 federal) compared to the 8111
produced through a Westlaw search. We also discovered that Westlaw continuously
adds cases to its databases many months after they have been decided. Our final
cutoff date for Westlaw search numbers and cases was January 31, 2005. Westlaw
searches after this date will likely reveal some additional cases and perhaps delete
some of the cases we reported. We acknowledge that our procedure did not pick up
every mediation case on Westlaw. We tried. We are continually reviewing the
database and our case analysis and making minor corrections or additions to be sure
that it is as accurate and complete as possible.
16. This questionnaire was amended several times. We continued to refine the
questionnaire and reanalyze the cases throughout the process. The final version of
the questionnaire is included in Appendix A, infra.
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The 1223 cases were placed in one of nine subject matter catego-
ries: Personal Injury/Tort; Contract/Commercial; Family Law; Em-
ployment (including harassment and discrimination claims); Estate;
Malpractice; Tax/Bankruptcy; IDEA Claims; and Other. The specific
issues addressed in each case were reported and separated into the
following categories: enforcement of an alleged mediation agreement;
mediation sanctions; duty to mediate; mediation confidentiality; me-
diation ethics or malpractice in the conduct of the mediation; media-
tion/arbitration issues; fees; condition precedent; or other. Many of
the cases involved more than one issue. For example, numerous
cases involved the issue of whether compliance with a statutory or
contractual mediation clause was a condition precedent and created a
duty to mediate before bringing suit.17 When the case involved an
enforcement issue, a number of other issues relating to defenses
raised were reported.
In response to current concerns about the mediation process, we
included questions relating to confidentiality, mediator conduct, and
litigation over sanctions and fees. The questionnaire recorded sev-
eral aspects of mediation confidentiality, starting with whether the
mediator provided evidence by testimony or affidavit or whether the
parties introduced evidence of statements by the mediator. We also
reported when the parties revealed mediation communications in
subsequent litigation. We noted when a claim of privilege was raised
and whether the claim of privilege was upheld. The questionnaire
also kept track of misconduct claims as well as claims for sanctions or
fees.

B. Raw Numbers
The initial Westlaw search for opinions using the term “mediat!”
produced 8127 opinions, composed of 5124 state court cases and 3003
federal court cases. The number of opinions that mentioned media-
tion in some form increased steadily from 1172 in 1999 to 2169 in
2003, an eighty-five percent increase over the five-year period. As
shown in Table 1, the number of opinions in our database increased

17. See, e.g., Kent Feeds, Inc. v. Manthei, 646 N.W.2d 87, 89–90 (Iowa 2002) (re-
jecting claim that failure to comply with the mediation requirement under state
farmer creditor statute barred claim against guarantors); DeGroff v. Mascotech Form-
ing Techs., 179 F. Supp. 2d 896, 902–10 (N.D. Ind. 2001) (enforcing a mandatory me-
diation/arbitration clause in a Title VII employment dispute); Montgomery v. Earth
Tech Remediation Servs., No. 99-5612, 2000 WL 276101 (E.D. Pa. Feb. 29, 2000)
(finding a mediation/arbitration agreement binding in a Title VII employment case);
see also BD v. DeBuono, 193 F.R.D. 117, 140 (S.D.N.Y. 2000) (rejecting claim that the
failure to raise an issue in the mediation of an IDEA dispute waived that claim).
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52 Harvard Negotiation Law Review [Vol. 11:43

at a similar rate from 172 in 1999 to 335 in 2003, reflecting a ninety-

five percent increase. In total, we found 1223 reported opinions in-
volving significant mediation issues in the five-year period of Janu-
ary 1, 1999 through December 31, 2003.

TABLE 1: NUMBER OF MEDIATION CASES PER YEAR, 1999–2003

Federal State
400
350
300
250
200
150
100
50
0
1999 2000 2001 2002 2003
Year
The increase in reported opinions is almost entirely in the state
courts. The number of opinions has remained relatively flat in the
federal courts. In 1999, there were sixty-two federal court opinions
raising mediation issues, increasing to ninety-six in 2002 but falling
back to eighty-seven in 2003.
The total number of relevant opinions (1223) may not appear sig-
nificant on a national scale; the increased numbers might simply re-
flect the increased use of mediation in the United States.18 On the

18. Since many mediations are private matters, it is difficult to determine the
number of mediations conducted in any jurisdiction. According to the National
Center for State Courts, “[b]ecause programs and rules vary widely from state to
state, and even within a single state, national data is nearly impossible to come by
and even more difficult to analyze.” NATIONAL CENTER FOR STATE CONCERNS, Media-
tion FAQ’s, http://www.ncsconline.org (last visited Apr. 5, 2005). The Florida Dispute
Resolution Center has documented over seventy-six thousand court-connected media-
tions in 2002, which does not account for all the mediations in Florida. See Press,
supra note 1, at 55 (citing KIMBERLY KOSCH, FLORIDA MEDIATION AND ARBITRATION R
PROGRAMS: A COMPENDIUM (2003)). In 2000–2001, nearly 8000 cases were mediated
in just five superior courts in California. See Stipanowich, supra note 3 (citing the R
Judicial Council of California, Evaluation of the Early Mediation Pilot Projects (Feb.
27, 2004)). Nationally, community mediation programs handle an estimated 100,000
conflicts each year. See Timothy Hedeen, The Evolution and Evaluation of Commu-
nity Mediation: Limited Research Suggests Unlimited Progress, 22 CONFLICT RES. Q.
101, 101 (citing 2003 report of the National Association for Community Mediation).
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Spring 2006] Disputing Irony 53

other hand, the increasing number of cases reported annually and

the concentration of the litigation in a few jurisdictions definitely
suggests that ADR is moving out of the shadows of the courthouse
into the light of public scrutiny.19
As indicated in Table 2, Texas state courts had 145 opinions, ac-
counting for nearly twelve percent of all opinions in the database.
California was next with 122 opinions (10%) followed by Florida with
eighty-three (6.8%), Ohio with forty-five (3.7%), and Washington with
thirty-four opinions (2.8%). The federal courts20 in New York, with
thirty-six opinions (3%), Texas, with thirty-three (2.7%), and Florida
with twenty-nine (2.4%), led the federal jurisdictions.
In 1999, there were only three opinions from California state
courts involving mediation issues. By 2003, there were fifty-four Cal-
ifornia opinions addressing mediation issues. The numbers almost
doubled in Florida, from thirteen in 1999 to twenty-five in 2003. In
Texas, mediation litigation increased from twenty-three cases in
1999 to twenty-nine in 2003.

TABLE 2: LEADING JURISDICTIONS FOR MEDIATION

State Federal
Number of Total Cases
200
180
160
140
120
100
80
60
40
20
0
TX CA FL NY OH NC WA MN TN AL
States
The trend of an increase in mediation litigation appears to be
continuing in 2004 and 2005. Our preliminary review of decisions

19. The ADR community may suggest a different metaphor, like moving from the
shadows into the darkness of the adversary system. See generally James J. Alfini &
Catherine G. McCabe, Mediating in the Shadow of Courts: A Survey of the Emerging
Case Law, 54 ARK. L. REV. 171 (2001).
20. For ease in analysis we treated all federal district courts in the same state as
one jurisdiction.
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54 Harvard Negotiation Law Review [Vol. 11:43

reported in 2004 and the first six months in 2005 leads us to predict
that the total number of mediation opinions in both years will exceed
four-hundred cases.

C. Level of Court

Most litigated issues about mediation are handled at the trial

level, usually without any reported opinion. As would be expected,
most of the opinions in our database came from appellate courts
(874), although we did find 350 trial court opinions. Most of the trial
court opinions (290) were from federal courts. Legal issues involving
mediation are increasingly finding their way up the appellate chain
to state supreme courts. State supreme courts addressed mediation
issues in ninety-one opinions over the five-year period. In 1999, state
supreme courts addressed mediation issues in eleven cases; in 2003,
that figure grew to thirty.

D. Subject Matter

Table 3 separates the cases based on the general subject matter

of the underlying dispute that gave rise to the mediation process.
Slightly over thirty percent of the cases (373) were contractual dis-
putes or involved commercial litigation. These disputes ranged from
large cases, such as a class action suit involving a “Y2K” software
dispute,21 to smaller cases, such as those involving a partnership dis-
solution22 or the specific performance of a property dispute.23 The
next largest group of cases (264) involved family law disputes.24

21. See, e.g., Preferred MSO of America-Austin LLC v. QuadraMed Corp., 85 F.

Supp. 2d 974, 977 (C.D. Cal. 1999) (addressing ADR requirement in federal Y2K act).
22. See, e.g., Earl Anthony Bowling, Inc. v. Corrie Dev. Corp., No. A099215, 2003
WL 356880 (Cal. Ct. App. Feb. 19, 2003) (holding that court did not have subject
matter jurisdiction to enforce a mediation agreement when parties were not in pend-
ing litigation).
23. See, e.g., DR Lakes, Inc. v. Brandsmart U.S.A. of West Palm Beach, 819 So.
2d 971 (Fla. Dist. Ct. App. 2002) (holding that the statutory mediation privilege did
not apply when a party was claiming that a mediated settlement agreement in a real
property transaction was not enforceable because of mutual mistake because of a cler-
ical error).
24. Selecting the family law cases was difficult. In several states, mediation is an
established step in the divorce process. If agreement is reached in mediation, the
agreement is submitted to the court to be included in a court order. Court orders in
family law cases setting forth such matters as visitation rights, child support, or even
property settlements are constantly subject to reevaluation as circumstances change
in the lives of the family members. If parties attempted to modify a court order that
in whole or part was based on a mediated agreement, we made subjective judgments
whether the case involved a significant mediation issue, or simply a modification of a
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Spring 2006] Disputing Irony 55

Nearly half of these cases (124) came from five states where media-
tion is an integral part of the family law process: Texas (43); Florida
(33); California (20); Ohio (14); and Washington (14). Personal injury
and employment litigation each represented about twelve to thirteen
percent of the total number of cases. The employment litigation cases
included a number of Title VII25 and other statutory claims.26
There were a number of claims brought under the Individuals
with Disabilities Education Act (IDEA).27 Under this statute, schools
are required to develop procedures to allow parents of children with
disabilities to contest “any matter relating to the identification, eval-
uation, or educational placement” of their child.28 The Act creates a
right to mediation or a due process hearing and, if necessary, a right
to litigate in court. Congress provided a fee shifting provision to ease
the financial burden on parents in these disputes, allowing for the
recovery of attorneys’ fees if they become the “prevailing party.” Sev-
eral cases addressed the question of whether parents who have ob-
tained a settlement in mediation, rather than in a court decision, are
“prevailing parties.”29
Cases involving mediation issues were diverse. We placed 167
cases in a “Miscellaneous” category. These included cases involving
such diverse issues as property disputes,30 civil rights cases outside

court order. See, e.g., Goins v. Goins, 762 So. 2d 1049 (Fla. Dist. Ct. App. 2000) (con-
testing the language in a court order that purported to incorporate a mediated
settlement).
25. See, e.g., Stewart v. Memphis Hous. Auth., 287 F. Supp. 2d 853 (W.D. Tenn.
2003) (examining the resolution of a Title VII complaint brought against housing au-
thority); Montgomery v. Earth Tech Remediation Serv., No. Civ.A. 99-5612, 2000 WL
276101 (E.D. Pa. Feb. 29, 2000) (finding a mediation/arbitration agreement binding in
a title VII employment case).
26. See, e.g., Baum v. Rockland Cmty. Coll., 299 F. Supp. 2d 172 (S.D.N.Y. 2003)
(examining enforcement issues raised after mediated settlement agreement regarding
violations of the ADEA and ADA).
27. 20 U.S.C. §§ 1400–1487 (1997).
28. 20 U.S.C. § 1415(b)(6)(A).
29. See, e.g., T.D. v. LaGrange Sch. Dist. No. 102, 349 F.3d 469, 482 (7th Cir.
2003) (ruling that parents were not “prevailing parties” for private settlement, but
were “prevailing parties” justifying attorneys fees to the extent they prevailed at an
administrative hearing); Casey F. v. River Falls Sch. Dist., 243 F.3d 329 (7th Cir.
2001) (holding that parents who obtained a settlement agreement in mediation were
not prevailing parties under the statute).
30. See, e.g., Catamount Slate Prods. v. Sheldon, 845 A.2d 324 (Vt. 2003) (decid-
ing a quiet title action between neighbors and owners of a slate quarry); Branch v.
Rohr, No. B145738, 2001 WL 1446884 (Cal. Ct. App. Nov. 15, 2001) (addressing dis-
pute over a shared driveway).
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56 Harvard Negotiation Law Review [Vol. 11:43

of the employment area,31 a class action suit challenging prison con-

ditions,32 and a dispute over the proceeds of a settlement in a qui tam
False Claims Act suit.33

TABLE 3: TYPE OF CASE

IDEA Miscellaneous
18 167 Commercial/
Tax/ Contract
Bankruptcy 373
23 Estate
34
Malpractice
41

Personal Injury
153

Family Law
Employment
264
153

E. Mediation Issues

Table 4 shows the types of mediation issues that were addressed

in the cases. The total number of issues raised far exceeds the num-
ber of opinions because some opinions addressed several mediation
issues.34

31. See, e.g., Brisco-Wade v. Carnahan, 297 F.3d 781 (8th Cir. 2002) (finding
abuse of discretion by court ordering prevailing prison officials to pay mediation fees
of prisoner’s pro se § 1983 action).
32. See Jones v. Mabry, 205 F.3d 1346 (8th Cir. 1999) (addressing mediated set-
tlement agreement with prison inmates concerning grooming guidelines).
33. See United States v. Quorum Health Group, Inc., 171 F. Supp. 2d 1323 (M.D.
Fla. 2001) (assessing realtor’s share of proceeds after mediated settlement of false
claims act action).
34. Almost a third of the cases involved more than one issue (377 cases out of
1223). The most common combination of issues included: duty to mediate/condition
precedent (108); sanction/fees (65); mediation-arbitration/condition precedent (44);
duty to mediate/fees (44) and enforcement/confidentiality (35). Enforcement disputes
made up more than half of all the single-issue opinions (451 out of 847 opinions),
followed by fee disputes (117), miscellaneous disputes (75), confidentiality (68) and
duty to mediate (67).
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Spring 2006] Disputing Irony 57

TABLE 4: MEDIATION ISSUES PRESENTED*

Enforcement of
Mediated Settlements 569

Duty to Mediate 279

Fees 243

Confidentiality 152

Condition Precedent 123

Sanctions 117

Ethics/Malpractice 99

Arbitration-Mediation 88

Miscellaneous 100

0 100 200 300 400 500 600

Number of cases
*Some cases present more than one issue

II. CONFIDENTIALITY

A. Overview

The database contains 152 opinions where courts considered a

mediation confidentiality issue, including fifteen state supreme court
decisions and eight federal circuit court opinions. The number of
cases raising confidentiality issues more than doubled between 1999
and 2003, from seventeen to forty-three.35 In a number of opinions,
confidentiality issues were commonly interlinked with other media-
tion dispute issues: enforcement (46); ethics/malpractice (21); sanc-
tions (21); fees (18); mediation-arbitration (9); and duty to mediate
(8).

35. Predictably, state opinions in California (26), Texas (16), Florida (10), and
Ohio (9) led the way.
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58 Harvard Negotiation Law Review [Vol. 11:43

The majority of the confidentiality opinions (130) considered

whether to permit testimony or discovery from mediation partici-
pants. Courts upheld statutory or rule limitations on availability of
such evidence in fifty-seven opinions (44%), upheld limitations in
part in eight cases (6%), and declined to protect confidentiality in
sixty opinions (46%). In five cases (4%), the issue was left unde-
cided.36 The balance of the confidentiality decisions (22) address a
range of questions other than admissibility or discovery, most com-
monly judicial disqualification37 or consequences for breach of confi-
dentiality agreements.38
While these confidentiality disputes certainly merit discussion,39
the more significant finding is the large volume of opinions in which

36. See, e.g., Estate of Smith v. Smith, No. A097581, 2003 WL 1558280 (Cal. Ct.
App. Mar. 26, 2003) (denying as moot a motion to strike portions of appendix which
contained mediation statements, but noting in a footnote that such statements are
confidential and inadmissible); Marple v. Homes, No. G027809, 2002 WL 657962, at
*7 (Cal. Ct. App. Apr. 22, 2002) (refusing to rule on claim that party was deprived of
due process and equal protection by the court’s failure to compel the mediator to tes-
tify on the question of whether parties intended to settle all or only a part of their
lawsuit because the record below failed to show that the trial court considered the
issue and the appellate court “does not issue advisory opinions”); Ashley Furniture
Indus., Inc. v. SanGiacomo N.A. Ltd., 187 F.3d 363 (4th Cir. 1999) (remanding en-
forcement and confidentiality issues to trial court which could better interpret and
apply local court rules).
37. See, e.g., Metz v. Metz, 61 P.3d 383 (Wyo. 2003) (finding no abuse of discre-
tion in trial judge’s failure to disqualify himself from presiding over divorce bench
trial after having first heard evidence concerning the parties’ earlier mediation and
denying wife’s motion to enforce an alleged mediated settlement); Cashin v. Cashin,
No. C4-02-902, 2003 WL 42269 (Minn. Ct. App. Jan. 7, 2003), appeal after remand,
No. C4-02-1984, 2003 WL 21266858, at *2 (Minn. Ct. App. June 3, 2003) (finding no
abuse of discretion in trial court refusal to remove a parenting-time expediter for a
“technical” violation of confidentiality—the expediter’s notification to court of con-
cerns that the parties’ children were “being emotionally abused by the punitive vagar-
ies of [a party’s] behavior”—because the disclosure was motivated by concern for the
parties’ children); Enterprise Leasing Co. v. Jones, 789 So. 2d 964 (Fla. 2001) (finding
trial judge not subject to automatic disqualification from presiding over personal in-
jury action to be tried by a jury, merely because judge is informed by plaintiff’s coun-
sel of confidential mediation information, including demand for settlement and
highest offer made by defendants).
38. See, e.g., Toon v. Wackenhut Corrs. Corp., 250 F.3d 950 (5th Cir. 2001) (af-
firming award of sanctions for bad faith filing of an unsealed motion to enforce a
mediated settlement in violation of the settlement’s confidentiality provisions); Moore
v. Kaufman, No. 13154357, 2003 WL 1930322 (Cal. Ct. App. Apr. 24, 2003), cert. de-
nied (July 9, 2003) (dismissing breach of contract claim based on attorney’s alleged
breach of a mediation confidentiality agreement because plaintiff was not a party to
the confidentiality agreement); SCJ, Inc. v. Davis, No. D038673, 2003 WL 123064 (Ca.
Ct. App. Jan. 15, 2003) (affirming dismissal of plaintiff’s complaint for breach of confi-
dentiality provision in mediated settlement where agreement did not expressly and
unambiguously limit disclosure).
39. See Part II.C.1, infra notes 61–81 and accompanying text. R
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Spring 2006] Disputing Irony 59

courts considered detailed evidence of what transpired in mediations

without a confidentiality issue being raised—either by the parties, or
sua sponte by the court. Indeed, uncontested mediation disclosures
occurred in thirty percent of all decisions in the database, cutting
across jurisdiction, level of court, underlying subject matter, and liti-
gated mediation issues. Included are forty-five opinions in which
mediators offered testimony, sixty-five opinions where others offered
evidence about mediators’ statements or actions, and 266 opinions
where parties or lawyers offered evidence of their own mediation
communications and conduct—all without objection or comment. In
sum, the walls of the mediation room are remarkably transparent.

B. Uncontested Mediation Evidence

1. Mediator Evidence
The database contains sixty-seven opinions detailing or alluding
to direct testimony or affidavits from mediators.40 In sixty-seven per-
cent of these cases (45), the information was considered without judi-
cial review of confidentiality principles and apparently without
objection by either party. In an additional eighty-seven opinions,
parties or lawyers offered evidence regarding what mediators said or
did. In seventy-five percent of these cases (65), the evidence was con-
sidered by the court without contest.
The substance of uncontested mediator evidence was extremely
wide-ranging, including testimony about:
• attendance and authority;41
• quality of parties’ participation;42

40. These sixty-seven opinions include six cases where others, as well as the me-
diator, provided mediation evidence.
41. See, e.g., In re A.A., 560 S.E.2d 763 (Ga. Ct. App. 2002) (allowing mediator
testimony regarding why mediation did not occur, including explanation that party
did not want to pay for it); Cabellero v. Wikse, No. 27995, 2003 WL 21697914 (Idaho
July 23, 2003), opinion withdrawn, No. 27995, 2004 WL 858710 (Idaho Apr. 22, 2004)
(allowing mediator to testify that he would have terminated the session if he did not
believe lawyer had authority); Stull v. Port Auth. of N.Y. and N.J., 701 N.Y.S.2d 430
(N.Y. 2000) (allowing evidence that mediator had instructed counsel to come to the
table with full authority to enter into a settlement).
42. See, e.g., Lehrer v. Supkis, No. 01-00-00112-CV, 2002 WL 356394, *1 (Tex.
App. Feb. 28, 2002) (noting that mediation was highly contentious and “that the ap-
pellant, by making offensive statements, alienated the mediator”); Nick v. Morgan’s
Foods, Inc., 270 F.3d 590 (8th Cir. 2001) (allowing mediator testimony concerning
appellants’ minimal level of participation); Tatarian v. Aluf Plastics, No. 01-CV-5372
(WGB), 2002 WL 1065880 (D.N.J. May 13, 2002) (considering mediator correspon-
dence confirming that a party subverted the mediation process by repeatedly making,
and then withdrawing, settlement offers).
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60 Harvard Negotiation Law Review [Vol. 11:43

• quality of class action bargaining;43

• party admissions and impeachment;44
• party conduct and mental state;45
• what issues were or were not discussed;46
• mediator’s factual assertions;47
• mediator’s valuation of the case;48

43. See, e.g., Ingram v. Coca-Cola Co., 200 F.R.D. 685 (N.D. Ga. 2001) (consider-
ing mediator testimony that parties engaged in vigorously contested settlement nego-
tiations and that the monetary benefit to the class compares favorably to the likely
outcome of litigation); Ramah Navajo Chapter v. Babbitt, 50 F. Supp. 2d 1091 (D.N.M.
1999) (considering mediator praise for the settlement); Green v. Am. Express Co., 200
F.R.D. 211 (S.D.N.Y. 2001) (considering mediator testimony affirming arms-length
negotiations and parties’ zealous advocacy).
44. See, e.g., In re Marriage of Slayton, 103 Cal. Rptr. 2d 545 (Cal. Ct. App. 2001)
(considering mediator testimony in custody dispute that mother admitted she would
leave child home alone); Kaye v. Kaye, No. FA010181871S, 2003 WL 22133976 (Conn.
Super. Ct. Aug. 29, 2003) (considering mediator testimony regarding whether defen-
dant made statements impeaching his own financial statement).
45. See, e.g., Goad v. Ervin, No. E033593, 2003 WL 22753608 (Cal. Ct. App. Nov.
21, 2003) (considering mediator testimony that party was angry when he checked in
at beginning of mediation); In re S.H., 987 P.2d 735 (Alaska 1999) (allowing mediator
testimony that party was acting irrationally); Jarrow Formulas, Inc. v. LaMarche,
118 Cal. Rptr. 2d 388 (Cal. Ct. App. 2002), aff’d, 74 P.3d 737 (Cal. 2003) (allowing
evidence that a party was screaming and yelling and attempted to leap over the table
to physically attack the other party, forcing the mediator to intervene); V.J.L. v.
R.E.D., 39 P.3d 1110 (Wyo. 2002) (permitting mediator to file written report about
party’s behavior in response to pro se party motion alleging irregularities in the medi-
ation process).
46. See, e.g., Coulter v. Carewell Corp. of Okla., 21 P.3d 1078 (Okla. Civ. App.
2001) (considering mediator testimony about whether release would be forthcoming);
Genesis Props. v. Crown Life Ins. Co., No. 98-2370, 2000 WL 178403 (6th Cir. Feb. 8,
2000) (considering mediator testimony that attorney fees were never discussed); Lam-
berts v. Lillig, 670 N.W.2d 129 (Iowa 2003) (considering mediator testimony regard-
ing whether fundamental constitutional rights and issues were discussed during
mediation of grandparent visitation dispute).
47. See, e.g., Diebold v. Nelson Oyen & Torvik, PLLP, No. C7-02-781, 2003 WL
282430 (Minn. Ct. App. Feb. 11, 2003) (noting evidence that mediator stated insur-
ance policy cash value to be approximately $64,000); Kendrick v. Barker, 15 P.3d 734
(Wyo. 2001) (considering letter from mediator stating time limitation on pending of-
fer); Brinkerhoff v. Campbell, 994 P.2d 911 (Wash. Ct. App. 2000) (including testi-
mony that mediator mistakenly believed that insurance policy limits were $100,000
and conveyed the erroneous information to his client parties).
48. See, e.g., Streber v. Hunter, 221 F.3d 701 (5th Cir. 2000), reh’g and suggestion
for reh’g en banc denied, 233 F.3d 576 (5th Cir. 2000) (including testimony that medi-
ator, a former judge, told parties they should not settle because they would lose tax
dispute at trial); Brehm Cmtys. v. Super. Ct., 105 Cal. Rptr. 2d 918 (Cal. Ct. App.
2001) (including party declaration that mediator, a retired judge, determined that
settlement was fair); Gentry v. Wilson, 628 N.W.2d 439 (Wis. Ct. App. 2001) (noting
evidence that physician member of malpractice mediation panel advised participants
that there may have been negligence).
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• mediator’s proposals;49
• mediator’s understanding of settlement terms;50
• parties’ understanding of settlement terms;51 and
• coercion and duress allegations.52
In line with the obligation to decide only matters presented for
decision, and consistent with judicial officers’ inclination to hear all
available evidence—especially when offered by an arguably “unbi-
ased” witness53—courts are in near uniformity in their silence about
the open door for mediator evidence. One notable exception is VJL v.

49. See, e.g., Emerson v. Comm’r, 85 T.C.M. (CCH) 1044 (2003) (noting mediator
suggestion to amend complaint by adding personal injury claim as a way to avoid
taxation); Lamothe v. On Beach Surf Shop, Inc., No. 14024522, 2003 WL 21791592, at
*1 (Cal. Ct. App. Aug. 5, 2003) (noting mediator proposal to “split the difference” and
settle case for $87,500).
50. See, e.g., Ex parte Littlepage, 796 So. 2d 298 (Ala. 2001), on remand, Lit-
tlepage v. Littlepage, 796 So. 2d 303 (Ala. Civ. App. 2001) (considering mediator testi-
mony about parties’ intent on payment of credit card debt); Persada v. Persada, No.
E2002-00397-COA-R3-CV, 2002 WL 31640564 (Tenn. Ct. App. Nov. 22, 2002) (consid-
ering mediator testimony that $60,000 cash payment was in exchange for interest in
marital residence); Douthwright v. Northeast Corridor Founds., 805 A.2d 157 (Conn.
App. Ct. 2002) (considering mediator testimony that settlement was not contingent
upon execution of a contemplated arbitration agreement).
51. See, e.g., Herrera v. Herrera, 974 P.2d 675 (N.M. Ct. App. 1999) (considering
mediator testimony concerning husband’s understanding of a divorce decree, showing
fact that husband made no objection to settlement terms during the mediation, and
that the final marital termination agreement reflected the terms negotiated in media-
tion); Gelfand v. Gabriel, No. B152557, 2002 WL 1397037, at *3 (Cal. Ct. App. June
27, 2002) (noting testimony that the mediator in the presence of all parties and coun-
sel “explained very carefully the terms of the settlement, asked each of the parties
whether they agreed to the terms and conditions, asked each of the attorneys present
whether they joined in the parties’ acceptance, and was personally present when the
stipulation was reduced to writing”).
52. See, e.g., Gallagher v. Gallagher, No. 125000, 1999 WL 795683 (Va. Cir. Ct.
Aug. 18, 1999), aff’d in part, rev’d in part, 546 S.E.2d 222 (Va. Ct. App. 2001) (conclud-
ing that the assertion that party was “browbeaten” into agreement was countered by
evidence that she informed the mediator that she accepted the agreement’s terms);
Patsky v. Suprenant Cable Corp., No. 972527A, 2001 WL 1029642, at *2 (Mass.
Super. Ct. Aug. 2, 2001) (noting client’s testimony that he felt pressured when media-
tor “said she had another commitment at 5 p.m. and insisted on the settlement deci-
sion”); Vitakis-Valchine v. Valchine, 793 So. 2d 1094, 1096 (Fla. Dist. Ct. App. 2001)
(noting that mediator’s testimony on coercion allegations “was presented prior to that
of the wife, and, consequently, her allegations of potential misconduct were not di-
rectly confronted”).
53. See Ramirez v. De Coster, 142 F. Supp. 2d 104, 113 (D. Me. 2001) (crediting
Senator Warren Rudman’s testimony in dispute about enforcement of mediated set-
tlement and finding him as mediator “to be the most neutral and dispassionate ob-
server of what was said and done”).
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62 Harvard Negotiation Law Review [Vol. 11:43

Red and DDD,54 where the Wyoming Supreme Court summarily af-
firmed an adoption against challenge by a pro se biological mother
who, among other things, alleged irregularities in the mediation pro-
cess that preceded termination of her visitation rights. The mediator,
on his initiative, filed a report in response to the mother’s motions.
The court made no ruling on the propriety of the report, but was com-
pelled to question the wisdom of its production. According to the
court,
[T]he function of a mediator is to be a conciliator, to bring par-
ties together in an effort to reconcile their differences. Interject-
ing oneself into court proceedings after the fact of the mediation
as basically a witness to discredit the truthfulness and charac-
ter of a party to the mediation would not seem to comport with
the functions of a mediator.55

2. Evidence of Mediation Communications from Others

Parties and their lawyers offered evidence of their own communi-
cations and actions in mediation even more frequently than those of
the mediator. The database contains 359 opinions that include evi-
dence of oral mediation communications other than mediator evi-
dence. In seventy-four percent of these cases (266), the evidence
came in without objection or judicial review. As with mediator evi-
dence, parties and their lawyers shared their recollection of what was
said and done in mediation on a wide range of topics, including:
• nearly one hundred opinions with evidence detailing what is-
sues were or were not discussed in mediation;56
• more than thirty opinions discussing attendance/authority
issues;57

54. 39 P.3d 1110 (Wyo. 2002). See also In re R.H. Macy & Co., Inc., 236 B.R. 583,
587 n.5 (Bankr. S.D.N.Y.1999), aff’d, 283 B.R. 140 (Bankr. S.D.N.Y. 2002) (striking all
post-mediation briefing, opining that it was “inimical to the process of mediation and
an unwarranted use of that process as a further discovery tool to raise new argu-
ments”); Lyons v. Booker, 982 P.2d 1142 (Utah Ct. App. 1999) (remanding a dispute
about an appellate mediation settlement but advising the parties that mediation evi-
dence would be limited).
55. VJL v. Red and DDD, 39 P.3d 1110, 1113 n.3. (Wyo. 2002).
56. See, e.g., Boyd v. Boyd, 67 S.W.3d 398 (Tex. App. 2002) (citing evidence re-
garding failure at mediation to acknowledge receipt of a substantial employment bo-
nus); Strand Hunt Constr., Inc. v. Kaplan McLaughlin Diaz, No. 41844-1-I, 1999 WL
760250 (Wash. Ct. App. Sept. 27, 1999) (citing evidence that parties did not specifi-
cally discuss whether an agreement would contain a release of latent defects); Zurich
Reinsurance (U.K.) Ltd. v. Can. Pac. Ltd., 613 N.W.2d 760 (Minn. Ct. App. 2000) (cit-
ing evidence that there was no discussion of punitive damages).
57. See, e.g., Behling v. Russell, 293 F. Supp. 2d 1178 (D. Mont. 2003) (citing
evidence regarding who did the negotiating in mediation); Reliance Nat’l Ins. Co. v. B.
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Spring 2006] Disputing Irony 63

• more than twenty opinions offering bargaining histories;58 and

• more than fifteen opinions addressing parties’ assumptions
about settlement terms.59
In addition, a host of opinions discuss participants’ health maladies
offered to establish impairment of meaningful mediation
participation.60
While these uncontested evidence cases overwhelmingly suggest
that the walls of mediation rooms are largely transparent, parties
did, in a limited number of cases, seek to keep them opaque.

C. Contested Mediation Evidence

Parties challenged direct testimony offered by mediators in

twenty-two of sixty-seven cases where it was offered (33%). In com-
parison, parties challenged the introduction of mediator evidence pro-
vided by others only twenty-five percent of the time, in twenty-two of

Von Paris & Sons, Inc., 153 F. Supp. 2d 808 (D. Md. 2001) (evidence regarding failure
of party to have representative with settlement authority); Uy, M.D. v. Bronx Mun.
Hosp. Ctr., 182 F.3d 152 (2d Cir. 1999) (citing evidence regarding how long defen-
dant’s attorney was in the mediation room, how long she was gone, and how long after
absence before she refused to continue to participate).
58. See, e.g., Griffin v. Wallace, 581 S.E.2d 375 (Ga. Ct. App. 2003) (listing initial
settlement offer, initial demand, and counters, in dispute about enforcement of al-
leged oral agreement); Gen. Agents Ins. Co. of Am., Inc. v. Home Ins. Co. of Ill., 21
S.W.3d 419 (Tex. App. 2000) (detailing settlement authority, what lawyers believed
reasonable offers might be, and plaintiff demands in insurance subrogation case);
Turner v. Young, 205 F.R.D. 592 (D. Kan. 2002) (listing defense pre-mediation settle-
ment authority, plaintiff’s last mediation demand, and defendant’s final offer in opin-
ion denying sanctions for alleged failure to send a representative with settlement
authority to private mediation). For a detailed discussion of the intersection between
confidentiality and sanctions see, Part VI.B, infra notes 390–402 and accompanying R
text.
59. See, e.g., Georgos v. Jackson, 790 N.E.2d 448 (Ind. 2003) (noting that plaintiff
and his attorney mistakenly believed insurance policy limit was $100,000, when it
was in fact $1 million); Van Pelt v. Van Pelt, No. 04-99-00430-CV, 2000 WL 682640
(Tex. App. May 17, 2000) (noting party’s assertion that settlement agreement was
merely an outline and should not have been basis for court-issued consent judgment);
Inglish v. Machen, No. 01-98-01267-CV, 2001 WL 832356 (Tex. App. July 19, 2001)
(offering dramatically different interpretations of the parties’ intent with respect to
attorney fee provision in a mediated settlement).
60. See, e.g., Guthrie v. Guthrie, 577 S.E.2d 832 (Ga. Ct. App. 2003), aff’d, 594
S.E.2d 356 (Ga. 2004) (considering evidence that party had suffered anxiety attacks
and consumed at least four doses of Valium during course of the mediation); Jones v.
Wells Fargo Bank, No. A097707, 2002 WL 31630888, at *2 (Cal. Ct. App. Nov. 22,
2002), reh’g denied (Dec. 13, 2002) (considering evidence that client felt under ex-
treme duress and that “her attorney’s use of prescription medication made him
‘slower’ and not capable of acting in her best interest”); Lerer v. Lerer, No. 05-99-00
474 CV, 2000 WL 567020 (Tex. App. May 3, 2000) (admitting evidence that party had
a hazy memory and was completely debilitated by pneumonia at the mediation).
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64 Harvard Negotiation Law Review [Vol. 11:43

eighty-seven opinions. A similar challenge rate, twenty-six percent,

was found for other evidence of mediation communications, in ninety-
three of 359 opinions.

1. Confidentiality Upheld

Mediation confidentiality was upheld in a total of fifty-seven

cases. Over twenty percent of the decisions (12) were issued by Cali-
fornia courts, interpreting that state’s strict confidentiality stat-
utes.61 Setting the standard for California courts is the well known
opinion in Foxgate Homeowners’ Ass’n., Inc. v. Bramalea California,
Inc.62 The California Supreme Court vacated an award of mediation
sanctions that was based on a mediator’s report and other documents
that recited statements made during a mediation session. Strictly in-
terpreting the California mediation confidentiality statute, the court
concluded there was no implied statutory exception to confidentiality
authorizing a mediator’s disclosure to the court of sanctionable
conduct.63
The California Court of Appeals applied Foxgate in Eisendrath v.
Superior Court,64 an action to correct a mediated spousal support
agreement. The court ruled that no evidence of mediation communi-
cations between husband and wife may be admitted in evidence ab-
sent the parties’ express waiver of confidentiality, including those
statements made outside the presence of the mediator as long as they
were materially related to the purpose of the mediation. The appeals
court further concluded that the trial court erred in holding an in
camera evidentiary hearing to consider the relevance of the media-
tor’s testimony, reasoning the mediator was statutorily incompetent
to testify under California statutes.65 In addition to the California

61. CAL. EVID. CODE §§ 1119, 1121 (West 2006).

62. 25 P.3d 1117 (Cal. 2001).
63. See also In re Marriage of Hodges, Nos. D034701 & D036624, 2001 WL
1452210 (Cal. Ct. App. Nov. 16, 2001) (applying Foxgate to reverse an award of sanc-
tions where trial court had impermissibly permitted mediator testimony).
64. 134 Cal. Rptr. 2d 716 (Cal. Ct. App. 2003).
65. See also Greene v. Dillingham Constr., N.A., Inc., 124 Cal. Rptr. 2d 250,
255 (Cal. Ct. App. 2002) (ruling that disclosure of mediation offers would violate confi-
dentiality legislation and frustrate public policy favoring settlement); Green v. L.C.
Callins, Inc., No. E031425, 2003 WL 22078295 (Cal. Ct. App. Sept. 9, 2003) (conclud-
ing that trial court committed reversible error by contacting the mediator ex parte to
seek information regarding execution of the settlement by one of the parties).
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Spring 2006] Disputing Irony 65

decisions, courts in sixteen other states have issued opinions uphold-

ing confidentiality, including multiple rulings from Texas,66 Ore-
gon,67 and Indiana.68
Courts protect mediation communications at the discovery stage
as well as at trial. For example, in Cason v. Builders FirstSource-
Southeast Group, Inc.,69 an action brought by a former employee for
race-based hostile work environment and related claims, the court
refused to compel production of mediation and settlement documents
from a co-worker’s EEOC file.
In eight cases, confidentiality was upheld only in part. For ex-
ample, in In re RDM Sports Group, Inc.,70 the court protected coun-
sel’s memorandum of law presented to the mediator from discovery,
as well as copies of slides prepared for and possibly used in media-
tion, but declined to protect documents prepared well in advance of
mediation.

66. See, e.g., Allison v. Fire Ins. Exch., 98 S.W.3d 227, 260 (Tex. App. 2002) (rely-
ing on the “cloak of confidentiality” governing mediation proceedings to exclude evi-
dence that homeowner rejected settlement offers and made allegedly unreasonable
demands); Vick v. Waits, No. 05-00-01122-CV, 2002 WL 1163842, at *3–4 (Tex. App.
June 4, 2002) (enforcing privilege rules to exclude evidence of fraud).
67. See, e.g., In re Bidwell, 21 P.3d 161, 296 (Or. Ct. App. 2001) (concluding that
letters exchanged between the parties’ respective counsel while appellate mediation
was pending were “confidential mediation communications” and may not subse-
quently be offered in evidence to support a finding that a party was objectively unrea-
sonable during the proceedings or in pursuing settlement); In re Marriage of Reich, 32
P.3d 904 (Or. Ct. App. 2001) (refusing to admit evidence of mediation communications
in action to enforce a settlement made long after the failure of the parties’ mediation).
68. See, e.g., Vernon v. Acton, 732 N.E.2d 805 (Ind. 2000) (reversing trial court
order to enforce pre-trial mediated oral settlement agreement, and concluding that
testimony regarding the alleged oral settlement agreement was confidential and priv-
ileged and not admissible pursuant to the ADR rules incorporated in the parties’ writ-
ten agreement to mediate); R.R. Donnelley & Sons Co. v. N. Tex. Steel Co., Inc., 752
N.E.2d 112 (Ind. Ct. App. 2001) (holding that trial court committed error by admitting
a videotape prepared specifically for mediation).
69. 159 F. Supp. 2d 242 (W.D.N.C. 2001). See also Sheldone v. Pa. Tpk. Comm’n,
104 F. Supp. 2d 511 (W.D. Pa. 2000) (adopting and applying a federal mediation privi-
lege to preclude disclosure of written and oral communications made in connection
with, or during, a mediation conducted before a neutral mediator).
70. 277 B.R. 415 (Bankr. N.D. Ga. 2002). See also In re Anonymous, 283 F.3d 627
(4th Cir. 2002) (permitting limited mediation disclosures by an attorney and client
embroiled in a fee dispute since non-disclosure would cause manifest injustice, but
foreclosed testimony by the mediator, to whom a stricter confidentiality standard
applied).
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66 Harvard Negotiation Law Review [Vol. 11:43

2. Confidentiality Not Upheld

Courts expressly refused to protect mediation confidentiality in

sixty opinions. Surprisingly, few of these decisions involve a rea-
soned weighing of the pros and cons of compromising the mediation
process. Rather, courts routinely justify admissibility or discovery of
mediation information through:
• waiver;71
• consent;72
• finding that the process was not mediation;73

71. See, e.g., Chodos v. Gorin, No. B163447, 2003 WL 22464054 (Cal. Ct. App.
Oct. 31, 2003) (finding that failure to object to mediation evidence results in waiver of
privilege and going on to strike denial of malicious prosecution claim, in part relying
on statement made in mediation about reasons lawsuit was brought); Kalof v. Kalof,
840 So. 2d 365, 367 (Fla. Dist. Ct. App. 2003) (ruling that spouse waived the media-
tion privilege by moving to vacate based on duress and non-disclosure); Holmes v.
Concord Homes, Ltd., 115 S.W.3d 310, 318 (Tex. App. 2003) (finding no error in intro-
duction of considerable evidence about mediation and settlement offers at contract
dispute trial, where party failed to properly voice objections to introduction of specific
testimony and trial court informed the jury “at some length about the mediation pro-
cess and the confidentiality involved there, and then instructed counsel to avoid ask-
ing questions that invaded the mediation process”).
72. See, e.g., Fenske v. Fenske, No. C4-99-2007, 2000 WL 622589, at *3 (Minn.
Ct. App. May 16, 2000) (finding no error in trial court’s use of a mediator as an “expert
witness” under MINN. R. EVID. 706 by incorporating the mediator’s recommendation
as an order of the court, where court had ordered parties in harassment case to meet
with a mediator “within 10 days to come to an agreement for contact between the
parties for exchanging information about the children” and further ordered that ab-
sent agreement the mediator “shall offer his recommendations for contact . . . to the
Court”); Howard v. Ramsey, No. C-000503, 2001 WL 228015 (Ohio Ct. App. Mar. 9,
2001) (finding no violation of local mediation confidentiality rules where parties had
consented to testimony from a third party’s attorney regarding nature of the mediated
settlement). Cf. In re T.T., 39 S.W.3d 355 (Tex. App. 2001) (ruling that the parties’
consent to have mediator’s report submitted to the trial court for approval did not
constitute waiver of their right to exclude the report if offered as evidence against
them).
73. See, e.g., U.S. Fid. & Guar. Co. v. Dick Corp./Barton Malow, 215 F.R.D. 503
(W.D. Pa. 2003) (affirming special master decision to permit discovery of a settlement
from an earlier case involving some but not all parties upon finding that the settle-
ment was not protected by state mediation privilege, where a single mediation session
did not result in an agreement, a second session was discussed but never scheduled,
and the parties had only limited follow-up communication with the mediator in which
they apprised him of the ongoing settlement negotiations); In re Home Health Corp. of
Am., 268 B.R. 74 (Bankr. D. Del. 2001) (refusing to exclude memorandum prepared by
debtor for ADR proceeding where the proceeding was more like an arbitration than a
mediation); Kanach v. Rogers, 742 N.E.2d 987 (Ind. Ct. App. 2001) (refusing to seal
report prepared by a neutral custody-evaluator, noting that mediation confidentiality
rules are not implicated simply because parties choose to use the word mediation to
describe their ADR process).
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Spring 2006] Disputing Irony 67

• finding that the provider of evidence was not a mediator;74

• finding that confidential information was not actually dis-
closed,75 or that there was insufficient evidence to establish
whether confidential information was disclosed;76
• concluding the evidence was offered for a permissible pur-
pose;77 or
• concluding the evidence was not material or its introduction
constituted harmless error.78

74. See, e.g., Anderson v. Anderson, 514 S.E.2d 369 (Va. Ct. App. 1999) (holding
that exclusion of witness testimony—where evidence established that a licensed
clinical psychologist acted as therapist, rather than a mediator, in parties’ child cus-
tody dispute—constituted reversible error); Cashin v. Cashin, No. C1-00-111, 2000
WL 1528668 (Minn. Ct. App. Oct 17, 2000) (permitting witness testimony where party
failed to cite evidence indicating that the witness was a mediator at any stage of the
proceeding); Harbottle v. Harbottle, No. 20897, 2002 WL 31060237 (Ohio Ct. App.
Sept. 18, 2002) (refusing to exclude testimony where proffering of evidence revealed
witness was a counselor, not a mediator).
75. See, e.g., Riner v. Newbraugh, 563 S.E.2d 802 (W. Va. 2002) (criticizing the
trial court’s questioning of the mediator regarding details of a mediated settlement,
but refusing to find violation of confidentiality rules where the mediator did not dis-
close any confidential information); Sonii v. Gen. Elec., No. 95 C-5370, 2001 WL
1422136 (N.D. Ill. Sept. 21, 2001) (finding no disclosure of confidential communica-
tions, where party brief included references to opposing counsel’s refusal to engage in
rational discussions and overall futility of settlement efforts but included no specific
statements); Am. Constr. & Envtl. Servs., Inc. v. Mosleh, No. A093541, 2002 WL
31480282 (Cal. Ct. App. Nov. 7, 2002) (finding no violation of confidentiality where
witness provided factual information about cost of repair even though he had first
completed the cost calculations in a mediation).
76. See, e.g., Davidson v. Lindsey, 104 S.W.3d 483 (Tenn. 2003) (declining to infer
impropriety where the record did not establish definitively what information, if any,
was imparted to the trial judge by a settlement judge conducting mediation); In re
Miriah W., No. L-02-1182, 2002 WL 31630758 (Ohio Ct. App. Nov. 22, 2002) (rejecting
assertion that it was “highly probable” that the judge read a guardian’s report con-
taining protected confidential statements made by the father in mediation, where re-
cord is devoid of evidence that the judge either reviewed the report or based any
decisions on the objectionable material).
77. See, e.g., Smith v. Genstar Capital, LLC, No. C-01-3936 MMC, 2001 WL
1658315 (N.D. Cal. Dec. 20, 2001) (refusing to apply state evidentiary rules in federal
court proceedings and admitting into evidence under FED. R. EVID. 408, mediation
statements by plaintiffs’ counsel regarding the nature of plaintiffs’ damages claims,
where such information was introduced to show state of mind and lack of notice,
rather than liability or invalidity of a claim); In re Daley, 29 S.W.3d 915 (Tex. App.
2000) (permitting deposition of a non-party participant in mediation on the narrow
issue of whether he left the mediation session early and without permission of the
mediator; finding such limited testimony outside the scope of statutory mediation con-
fidentiality because it was not a communication relating to the subject matter of the
mediation).
78. See, e.g., In re A.C., No. 99-0955, 1999 WL 1255793 (Iowa Ct. App. Dec. 27,
1999) (finding harmless error where district court admitted into evidence testimony of
what mother said during a mediation meeting); Burgryn v. City of Bristol, 774 A.2d
1042 (Conn. App. Ct. 2001) (concluding that testimony concerning prior mediation
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68 Harvard Negotiation Law Review [Vol. 11:43

The most notable exception to this pattern is Olam v. Congress

Mortgage Co.79 In Olam, an action to enforce a mediated settlement
agreement where both parties desired the mediator’s testimony, Mag-
istrate Wayne Brazil concluded, in an extensive opinion, that the “in-
terest of justice” outweighed the negative impact that compelling
testimony would have on the mediation process in California.
Concerns about justice were also at the heart of decisions to com-
promise mediation confidentiality in Glover v. Torrence80 and Avary
v. Bank of America, N.A.81 In Glover, the Indiana Court of Appeals
ruled that the public interest in ensuring that children receive ade-
quate child support justified intrusion into mediation communica-
tions to determine if a father filed a fraudulent child support
worksheet.82 In Avary, the court determined that an executor’s fidu-
ciary duty may compel disclosure of otherwise protected confidential
communications made during court-ordered mediation.83 The court’s
holding applies where the evidence is sought in a claim based upon a
new and independent tort committed by the executor that is factually
and legally unrelated to the wrongful death and survival claims
which were successfully mediated.84

D. Context of Confidentiality

The level of vigilance for maintaining the confidentiality of medi-

ation discussions varies depending on the context of the litigation. If
the mediation settlement affects the rights of third parties, such as
settlement in class action cases, the expectation of confidentiality ap-
pears to disappear or be substantially diminished. Indeed, not a sin-
gle one of the thirty-four class action opinions in the database
presented a confidentiality dispute. Mediators offered testimony in
twelve and parties offered mediation evidence in twenty-two of these

used to determine fair market value of disputed property was immaterial to court’s
decision on ultimate litigated issues).
79. 68 F. Supp. 2d 1110 (N.D. Cal. 1999). Olam was decided before the California
Supreme Court decision in Foxgate Homeowners’ Ass’n., Inc. v. Bramalea California,
Inc., 25 P.2d 1117 (Cal. 2001).
80. 723 N.E.2d 924 (Ind. Ct. App. 2000).
81. 72 S.W.3d 779 (Tex. App. 2002).
82. Glover v. Torrence, 723 N.E.2d 924, 932 n.2 (Ind. Ct. App. 2000).
83. Avary v. Bank of America, N.A., 72 S.W.3d 779, 800–03 (Tex. App. 2002).
84. Id. at 803.
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Spring 2006] Disputing Irony 69

cases. In short, the bargaining process in class actions is closely scru-

tinized and frequently placed on the public record—whether the set-
tlement is reached through unfacilitated negotiation or with the
assistance of a mediator.85
The same pattern held for the forty-five opinions coded as third-
party impact cases.86 Only two such opinions, each raising issues of
child endangerment in contested divorce cases, presented confidenti-
ality disputes for resolution.87
Outside of California,88 and perhaps Texas,89 relevant mediation
communications appear to be used regularly in court to establish or
refute contractual defenses such as fraud, mistake, or duress.90
Overall, courts upheld confidentiality in enforcement cases in only
thirteen of the forty-six opinions where privilege was addressed.
While rules or statutes in some jurisdictions provide no privilege ex-
ceptions,91 others provide privilege exceptions to allow parties to
prove a contract defense.92

85. See, e.g., D’Amato v. Deutsche Bank, 236 F.3d 78, 85 (2d Cir. 2001) (noting
that “[a] court reviewing a proposed settlement must pay close attention to the negoti-
ating process, to ensure that the settlement resulted from ‘arm’s-length negotiations
and that plaintiffs’ counsel have possessed the experience and ability, and have en-
gaged in the discovery, necessary to effective representation of the class’s interests.”)
(quoting Weinberger v. Kendrick, 698 F.2d 61, 74 (2d Cir. 1982)).
86. Mediators offered testimony in two of the third-party impact cases; parties
offered evidence in fourteen of the third-party impact cases.
87. In re Marriage of Thompson, No. 02-0387, 2003 WL 1037859 (Iowa Ct. App.
Mar. 12, 2003) (denying without comment that part of father’s appeal of custody modi-
fication based on mother’s disclosure of privileged mediation communications); In re
T.T., 39 S.W.3d 355 (Tex. App. 2001) (ruling that parties’ consent to have mediator’s
report submitted to the trial court for approval did not constitute waiver of their right
to exclude the report if offered as evidence against them).
88. See, e.g., Van Horn v. Van Horn, No. HO24181, 2003 WL 21802273 (Cal. Ct.
App. Aug. 6, 2003) (precluding deposition of a mediator to determine whether an
agreement was entered into by mistake and was unfair); Eisendrath v. Super. Ct., 134
Cal. Rptr. 2d 716, 725 (Cal. Ct. App. 2003) (enforcing confidentiality rules to preclude
evidence which party sought to use to correct a judgment to conform it to the terms
actually agreed upon).
89. See, e.g., Vick v. Waits, No. 05-00-01122-CV, 2002 WL 1163842, *3–4 (Tex.
App. June 4, 2002) (precluding mediation communications offered on issue of fraud).
90. See generally, Ellen E. Deason, Enforcing Mediated Settlement Agreements:
Contract Law Collides with Confidentiality, 35 U.C. DAVIS L. REV. 33 (2001) (discuss-
ing how the application of traditional contract law conflicts with the concern for medi-
ation confidentiality).
91. See, e.g., MINN. GEN. R. PRAC. 114.08(a) (West 2006) (protecting from disclo-
sure “any fact concerning the proceeding” absent consent of all parties, providing no
exceptions for asserting contractual defenses). See generally Deason, supra note 90, R
at 45–50.
92. The Uniform Mediation Act provides an exception to the parties’ mediation
privileges when traditional contract defenses are asserted. UNIF. MEDIATION ACT
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70 Harvard Negotiation Law Review [Vol. 11:43

In jurisdictions that provide confidentiality exceptions for con-

tract defenses, counsel may choose to include a variety of potential
defenses in the hopes of expanding the scope of accessible evidence.
For example, in Florida, if a party asserts a defense of unilateral mis-
take, privilege rules prohibit evidence generated during the media-
tion, but if the claim is mutual mistake, the courts may consider what
occurred during the mediation.93 In Cain v. Saunders,94 the Ala-
bama Court of Appeals decided that the privilege rules did not pre-
vent the introduction of evidence that fraud or mistake affected the
settlement. Including a claim of mediator misconduct might also ex-
pand the admissibility of mediation communications. For example,
the Uniform Mediation Act provides an exception to the privilege
rules when there is a claim of professional misconduct or malpractice
against the mediator.95
An allegation of fraud successfully lifted the veil of confidential-
ity in most of the cases where the defense was raised. In twenty-
seven of the fifty-five fraud cases, the opinion referred to oral state-
ments made during the mediation. In four cases, the court consid-
ered written mediation communications, including a perjured child
support worksheet,96 an extortionate note threatening arrest if the
spouse did not agree to settlement,97 and prior drafts of the settle-
ment agreements.98 The parties offered evidence of the mediator’s
communications in seven cases. This evidence ranged from the medi-
ator’s prior drafts of settlement and letters written by the mediator99

§ 6(b)(2) (2003). The mediation communication is excepted only after the court con-
cludes that the evidence is not otherwise available, there is need for the evidence, and
that the need substantially outweighs the interest of confidentiality. It also does not
permit the mediator to provide the evidence giving rise to the contractual defense.
93. See DR Lakes, Inc. v. Brandsmart U.S.A., 819 So. 2d 971, 973–74 (Fla. Dist.
Ct. App. 2002).
94. 813 So. 2d 891, 894 (Ala. Civ. App. 2001). See also Kalof v. Kalof, 840 So. 2d
365, 367 (Fla. Dist. Ct. App. 2003) (ruling that spouse waived the mediation privilege
by moving to vacate based on duress and non-disclosure); Glover v. Torrence, 723
N.E.2d 924, 932 n.2 (Ind. Ct. App. 2000) (ruling that public policy ensuring that chil-
dren get adequate child support justifies intrusion into mediation communications to
determine if father filed a fraudulent child support worksheet).
95. UNIF. MEDIATION ACT § 6(a)(5) (2003).
96. Glover, 723 N.E.2d at 931–32.
97. Cooper v. Austin, 750 So. 2d 711, 711 (Fla. Dist. Ct. App. 2000).
98. Brown v. Brown, No. 03-01-00520-CV, 2002 WL 1343222 (Tex. App. June 21,
2002) (considering prior drafts of settlement agreement and exhibits); Few v. Ham-
mack Enters., Inc., 511 S.E.2d 665, 667–68 (N.C. Ct. App. 1999) (allowing evidence of
prior draft of settlement agreement and correspondence from counsel and the
mediator).
99. Few, 511 S.E.2d at 667–68.
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to testimony about what the mediator said during the mediation.100

In Brinkerhoff v. Campbell,101 the parties offered evidence that the
mediator made statements based on mistaken beliefs about the policy
limits while in caucus. Mediators provided testimony in person or by
deposition in three cases.102
Courts cited to evidence of mediation communications in twenty-
four of the thirty-six opinions addressing duress. In four cases, the
mediator supplied the evidence through testimony or affidavit.103
The duress opinions expressly addressed privilege issues in only four
cases104 and in each case allowed evidence of mediation
communications.
In seventeen of the thirty-four mutual mistake opinions, the
courts considered oral or written mediation communications. In four
opinions, the court considered evidence of mediator communications,
and in one case accepted testimony from the mediator. Of the
nineteen unilateral mistake cases, the opinion referred to mediation
communications in ten cases, including three opinions referring to

100. Gelfand v. Gabriel, No. SCO61373, 2002 WL 1397037, at *3 (Cal. Ct. App.
June 27, 2002) (allowing testimony that the mediator explained the terms of the set-
tlement and questioned all present whether they agreed); Chitkara v. N.Y. Tel. Co.,
45 F.App’x 53, 54 (2d Cir. 2002) (admitting statements of mediator regarding case
valuation and impact of unrelated bankruptcy proceedings); In re Patterson, 969 P.2d
1106, 1110 (Wash. Ct. App. 1999) (admitting evidence that mediator claimed a failure
to settle would ruin his settlement record). See also Lehrer v. Supkis, No. 01-00-
00112-CV, 2002 WL 356394, at *1 (Tex. App. Feb. 28, 2002) (characterizing mediator
as alienated by plaintiff).
101. 994 P.2d 911, 915 (Wash. Ct. App. 2000).
102. Matics v. Fodor, Nos. 209671 & 210440, 1999 WL 33451700, at *3 (Mich. Ct.
App. Apr. 2, 1999) (considering the deposition of a person referred to as an “informal
mediator” describing his recollection of the mediation); Advantage Props., Inc. v. Com-
merce Bank, N.A., No. 00-3014, 2000 WL 1694071, at *1 (10th Cir. Nov. 13, 2000)
(noting, in evaluating a challenge to the enforcement of a mediation agreement, that
the trial judge heard testimony from those present at the mediation, including the
mediator); Few, 511 S.E.2d at 670 (remanding the case and specifically ruling that
the “mediator is both competent and compellable to testify or produce evidence” on the
issues of fraud, mistake, and whether an agreement was reached).
103. Vitakis-Valchine v. Valchine, 793 So. 2d 1094 (Fla. Dist. Ct. App. 2001); Ad-
vantage Props., Inc., 2000 WL 1694071; Genesis Props. v. Crown Life Ins. Co., No. 98-
2370, 2000 WL 178403 (6th Cir. Feb. 8, 2000); Olam v. Cong. Mortgage Co., 68 F.
Supp. 2d 1110 (N.D. Cal. 1999).
104. Kalof v. Kalof, 840 So. 2d 365 (Fla. Dist. Ct. App. 2003); Goodman v. Hokom,
No. B145426, 2001 WL 1531187 (Cal. Ct. App. Dec. 4, 2001); F.D.I.C. v. White, 76 F.
Supp. 2d 736 (N.D. Tex. 1999); Olam, 68 F. Supp. 2d 1110.
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72 Harvard Negotiation Law Review [Vol. 11:43

the mediator’s communications and one case involving mediator

testimony.105
As with other contractual defenses, a claim that the mediated
settlement agreement was the result of a mistake puts substantial
pressure on the anticipated confidentiality of the mediation. Enforc-
ing a purported agreement that does not reflect the terms of the ac-
tual agreement or was premised on a mistake relating to the basis of
the bargain is inconsistent with mediation’s goal for self-determina-
tion. To assess accurately whether the agreement was entered into
or integrated by mistake requires intrusive analysis into what was
said or written during the mediation.
To the extent that the mediation is a caucus style process, the
mediator will likely be the communicator of the information that
gives rise to the mistake. The mediator may be the only witness of
what was said by and to the party that might have caused or be evi-
dence of the mistaken belief.106 Further, if the mediator drafts the
settlement documents, the mediator may have thrust him or herself
into a central role in the subsequent litigation.107
The issue of privilege was raised in only twelve of the 117 sanc-
tions cases. Mediation communications were reported in forty-three
of the 117 sanctions cases. Mediators provided evidence in seven
sanctions cases.
Courts and parties appear more vigilant in enforcing confidenti-
ality in fee issues, upholding confidentiality in eleven out of eighteen
confidentiality opinions where fees were in dispute. The rationale for
the harder line on fees is best expressed in Nwachukwu v. Jack-
son.108 In this attorneys’ fees dispute, the federal district court re-
fused to take into account the reasonableness of the parties’
respective bargaining positions in mediation. According to the court,
It would be hard to imagine a procedure better designed to de-
stroy the motivation parties have to engage in the mediation
process than to have a judicial officer determine how reasonable
or unreasonable they were during their mediation and predicate

105. See Dryden v. Burlington N. Santa Fe R.R., No. C00-4061 DEO, 2001 WL
34008725, at *2 (N.D. Iowa Nov. 29, 2001) (considering magistrate/mediator’s testi-
mony that he has never told a party that they have thirty days in which to change
their mind about a settlement agreement).
106. See id.
107. If the jurisdiction adopts the Uniform Mediation Act, mediator testimony
may remain privileged even if the parties assert that the statement conveyed by the
mediator or document drafted by the mediator serves as the basis for a claim of mu-
tual mistake. UNIF. MEDIATION ACT § 6(c) (2003).
108. 50 F. Supp. 2d 18 (D.D.C. 1999).
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a decision on that determination . . . it flies in the face of the

central judicial policy that settlement discussions be deemed
confidential to encourage parties to engage in them.109

III. ENFORCEMENT OF MEDIATED SETTLEMENT AGREEMENTS

A. Description of Enforcement Cases
The mediation issue most frequently litigated involved the at-
tempt to enforce a mediation agreement. Enforcement issues, raised
in 568 opinions (46% of the opinions in the database), include many of
the highly publicized mediation cases.
For example, Olam v. Congress Mortgage Co.,110 an opinion cited
in over sixty legal journal articles,111 involved a mortgage company’s
attempt to enforce an agreement reached after a lengthy mediation
session with a sixty-five-year-old woman in poor health. In Haghighi
v. Russian-American Broadcasting Co.,112 cited in forty-four arti-
cles,113 the Eighth Circuit refused to enforce a written, signed media-
tion agreement that did not include specific words required by a
Minnesota statute. In Vernon v. Acton,114 cited in forty-eight arti-
cles,115 the Indiana Supreme Court did not enforce an alleged oral
mediation agreement because of court rules making oral mediation
communications confidential.
Hundreds of less familiar cases detail a wide range of enforce-
ment disputes. Many focus on traditional contract defenses, but
others deal with legal technicalities unique to mediation, or the im-
pact of a mediated settlement on third parties. Included in the latter
category are nearly three dozen opinions in class action cases in
which the judge ruled on whether to approve a settlement that was
obtained through mediation.116

109. Nwachukwu v. Jackson, 50 F. Supp. 2d 18, 20 (D.D.C. 1999).

110. 68 F. Supp. 2d 1110 (N.D. Cal. 1999).
111. Based on Westlaw search of database TP-ALL.
112. 173 F.3d 1086, 1089 (8th Cir. 1999).
113. Based on Westlaw search of database TP-ALL.
114. 732 N.E.2d 805, 806 (Ind. 2000).
115. Based on Westlaw search of database TP-ALL.
116. See, e.g., Great Neck Capital Appreciation Inv. P’ship v. Price-
waterhouseCoopers, L.L.P., 212 F.R.D. 400 (E.D. Wis. 2002) (holding that certifica-
tion of class, approval of settlement of action, and approval of fees to both attorneys
was warranted); D’Amato v. Deutsche Bank, 236 F.3d 78, 85–87 (2d Cir. 2001) (hold-
ing that settlement negotiations were conducted by experienced professionals and ap-
proval of class action settlement was not abuse of discretion); Wershba v. Apple
Computer, Inc., 110 Cal. Rptr. 2d 145 (Cal. Ct. App. 2001) (holding that certification
of class and approval of settlement against computer sellers was not an abuse of dis-
cretion by the trial court). See also supra note 85 and accompanying text regarding R
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74 Harvard Negotiation Law Review [Vol. 11:43

B. Unsuccessful Enforcement Cases

In most of the enforcement cases (362), the courts enforced the
alleged mediation agreement in whole or in part.117 Courts refused
to enforce the alleged agreement in ninety-two opinions and re-
manded the case for further consideration in fifty-three cases.118
Some cases were resolved on procedural issues, so the court never
decided whether to enforce the agreement.119 Of the ninety-two en-
forcement cases where the alleged mediation agreement was not en-
forced, twenty-eight were contract or commercial cases, and twenty-
five were family law cases. In only six personal injury cases did a
court refuse to enforce an alleged mediated settlement agreement.
Numerous commentators have expressed concern about fairness
in the mediation process.120 If unfair practices are common in the
mediation process, however, they are not causing courts to disregard
the mediated settlement agreements with any frequency.
Several explanations are possible. The most obvious conclusion
is that notwithstanding the commentators’ concerns, fundamental
unfairness is uncommon in mediation practices. This conclusion is
reinforced by numerous studies that find high satisfaction ratings
among participants in mediations.121 A second explanation could be

court willingness to ignore mediation confidentiality when evaluating class action set-
tlement issues.
117. In fifteen opinions, the court enforced part of the agreement.
118. See, e.g., Ricks v. Abbott Labs., 65 F.App’x 899, 899 (4th Cir. 2003) (refusing
to affirm a trial judge’s ruling enforcing an oral agreement reached during an unre-
corded mediation session and remanding for an evidentiary hearing).
119. See Comer v. Comer, 295 F. Supp. 2d 201, 215 (D. Mass. 2003) (ruling that
the court lacked personal jurisdiction); Grand Union Supermarkets of V.I., Inc. v.
H.E. Lockhart Mgmt., Inc., 171 F. Supp. 2d 507, 514–15 (D.V.I. 2001), rev’d, 316 F.3d
408 (3d Cir. 2003) (dismissing because of lack of subject matter jurisdiction).
120. See, e.g., Richard Delgado, Fairness and Formality: Minimizing the Risk of
Prejudice in Alternative Dispute Resolution, 1985 WIS. L. REV. 1359, 1360–61 (1985);
Trina Grillo, The Mediation Alternative: Process Dangers for Women, 100 YALE L.J.
1545, 1548 (1991); Gary LaFree & Christine Rack, The Effects of Participants’ Ethnic-
ity and Gender on Monetary Outcomes in Mediated and Adjudicated Civil Cases, 30
LAW & SOC’Y REV. 767, 768–69 (1996); Carrie Menkel-Meadow, Do the “Haves” Come
Out Ahead in Alternative Judicial Systems?: Repeat Players in ADR, 15 OHIO ST. J. ON
DISP. RESOL. 19, 20 (1999). See generally Hensler, supra note 2; Welsh, supra note 2; R
James R. Coben, Gollum, Meet Sméagol: A Schizophrenic Rumination on Mediator
Values Beyond Self Determination and Neutrality, 5 CARDOZO J. CONFLICT RESOL. 65
(2004).
121. See, e.g., Chris Guthrie & James Levin, A “Party Satisfaction” Perspective on
a Comprehensive Mediation Statute, 13 OHIO ST. J. ON DISP. RESOL. 885, 886 (1998)
(reviewing published research on party satisfaction in mediation); Barbara McAdoo &
Nancy A. Welsh, Does ADR Really Have a Place on the Lawyer’s Philosophical Map?,
18 HAMLINE J. PUB. L. & POL’Y 376, 392 (1997) (“[R]esearch consistently shows such
increased satisfaction.”).
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Spring 2006] Disputing Irony 75

that courts are not carefully scrutinizing the fairness of the media-
tion process out of self-interest—mediation eliminates numerous
cases from the court dockets.122 It is also possible, as discussed in
Part II, that confidentiality rules in some jurisdictions may shield po-
tentially unfair mediation processes from judicial review or that the
application of traditional contract law does not adequately assure fair
mediation processes.
Although the frequency with which mediation agreements are
enforced suggests that mediation processes are generally fair, the in-
creasing volume of enforcement-related litigation may suggest other-
wise. The numbers are small but the trend is ominous. In 1999,
there were ten enforcement opinions in which the mediation agree-
ment was not enforced; in 2003, there were thirty-one.
There are too few reported opinions to draw conclusions, but an
analysis of the 2003 opinions leads to some interesting observations.
Six of the thirty-one cases refusing to enforce an agreement were
from California and four were from Florida. The California cases il-
lustrate the difficulty of merging the private mediation process with
the public adversarial system. Each of the cases is published on
Westlaw in what the court deems to be an “unpublished” opinion.
Hence, the California courts are using public judicial powers to re-
solve these private disputes in a private, ad hoc manner.123 Accord-
ing to California Court Rules, courts and parties cannot cite or rely
on unpublished opinions. Looking only at the 861 opinions by appel-
late courts in our database, over half (52%) of the opinions were un-
published. Much of the jurisprudence relating to the mediation
process remains ad hoc and private. The five Florida opinions in

122. Nancy A. Welsh, Making Deals in Court-Connected Mediation: What’s Justice

Got to Do With It?, 79 WASH. U. L.Q. 787, 836 n.247 (2001); Peter N. Thompson, En-
forcing Rights Generated in Court-Connected Mediation—Tension Between the Aspi-
rations of a Private Facilitative Process and the Reality of Public Adversarial Justice,
19 OHIO ST. J. ON DISP. RESOL. 509, 523 (2004).
123. See, e.g., Farnham v. Chase Homes, Inc., No. B156362, 2003 WL 21490938
(Cal. Ct. App. June 30, 2003) (refusing to enforce a mediated oral agreement in a
dispute over a remodeling contract when one of the parties refused to sign the written
agreement); Ray Arce, Inc., v. Peck/Jones Constr. Corp., No. B160979, 2003 WL
22101198 (Cal. Ct. App. Sept. 11, 2003) (refusing to enforce a valid default clause in a
mediation settlement agreement obtained with the help of counsel, citing equitable
principles codified in Cal. Civ. Code § 32751671 which authorizes courts to refuse to
enforce a contract if it would result in a forfeiture); Popkin v. City of Am. Canyon, No.
A098393, 2003 WL 21291058 (Cal. Ct. App. June, 5, 2003) (deciding not to treat the
mediated settlement agreement in a rent control dispute as an enforceable contract,
concluding that the “agreement” was more in the nature of a stipulated administra-
tive order).
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76 Harvard Negotiation Law Review [Vol. 11:43

2003 refusing to uphold an agreement, on the other hand, were all

published.124
The federal court opinions in 2003 that did not enforce an alleged
mediated settlement agreement address disparate subjects. For ex-
ample, in an action by farmers challenging a federal agency action, a
federal court did not enforce an alleged agreement that was embodied
in a confidential memorandum of understanding.125 The court ex-
plained that the agency’s representative at the mediation had no set-
tlement authority and, therefore, no binding agreement was
reached.126 United States v. Tennessee127 represents one of the few
cases where a trial judge refused to enforce or approve a class action
settlement obtained through mediation. The class, along with the
federal government, maintained that an intermediate care facility
run by the state failed to provide humane treatment to mentally re-
tarded residents. The proposed settlement, which would have closed
the facility, was objected to by many members of the class.
Many of the opinions (55) did not rule directly on the enforceabil-
ity of the agreement, but remanded the matter for further proceed-
ings. A large number of these cases raised summary judgment
issues, and the courts concluded that there were factual issues in dis-
pute.128 These cases arise in widely differing contexts. One example

124. Demorizi v. Demorizi, 851 So. 2d 243, 245–46 (Fla. Dist. Ct. App. 2003) (hold-
ing that equitable fairness required that wife recover an allocated share of tax deposit
despite two mediation agreements that did not include it); Dows v. Nike, Inc., 846 So.
2d 595, 602 (Fla. Dist. Ct. App. 2003) (ruling that a handwritten mediation document
was an agreement to agree and not an enforceable settlement agreement); L.F. v.
Dep’t of Children and Family Servs., 837 So. 2d 1098, 1101 (Fla. Dist. Ct. App. 2003)
(treating a mediation agreement reached with the Department of Children and Fam-
ily Services as a recommendation to the court); Still v. Still, 835 So. 2d 376 (Fla. Dist.
Ct. App. 2003) (setting aside an agreement obtained by fraudulent misrepresenta-
tions); S. Internet Sys., Inc. ex rel. Menotte, v. Pritula, 856 So. 2d 1125, 1128 (Fla.
Dist. Ct. App. 2003) (refusing to enforce a settlement agreement because of failure of
the condition precedent—board approval).
125. McKown v. U.S. Dep’t of Agric., 276 F. Supp. 2d 1201 (D.N.M. 2003).
126. Id. at 1210.
127. 256 F. Supp. 2d 768 (W.D. Tenn. 2003). See also In re BankAmerica Corp.
Sec. Litig., 210 F.R.D. 694, 713–14 (E.D. Mo. 2002) (refusing to approve proposed set-
tlement agreement in securities fraud class action).
128. See, e.g., Gray v. State Farm Mut. Auto. Ins. Co., 734 So. 2d 1102, 1103 (Fla.
Dist. Ct. App. 1999) (reversing and remanding summary judgment because of dis-
puted fact issue of whether the carrier waived or was prejudiced by lack of notifica-
tion); Lavigne v. Green, 23 P.3d 515, 520 (Wash. Ct. App. 2001) (reversing summary
judgment because of material issue of fact in dispute about whether the mediated
settlement agreement was disputed, and whether the parties reached an enforceable
agreement); Brinkerhoff v. Campbell, 994 P.2d 911, 916 (Wash. Ct. App. 2000) (re-
versing grant of summary judgment because of disputed factual issue on alleged mis-
representation leading to settlement agreement).
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is Ashley Furniture Industries Inc. v. San Giacomo, Ltd.,129 where

the Fourth Circuit ruled in a trade dress infringement suit that sum-
mary judgment should not be granted because factual issues were in
dispute.130 The court also instructed the trial judge to determine
whether the local rules131 governing mediation settlements, which di-
rected the parties to reduce any settlements to writing, superseded
the prior state law that allowed for the enforcement of oral settle-
ment agreements.132

C. Traditional Contract Defenses

1. General Principles
Enforcement disputes commonly involve traditional contract de-
fenses. Characterizing these contractual defenses presents a chal-
lenge. The defenses frequently are lumped together,133 and not all
are specifically addressed in the opinions. The defenses raise general
formation issues, such as whether there was a meeting of the minds
or mistake, as well as challenge the fairness of the process through
fraud and duress claims.

2. Specific Defenses
a. No Meeting of the Minds; Agreement to Agree
In opinions where parties were unwilling to comply with the
terms of a purported mediation agreement, they frequently raised is-
sues involving some variation of the claim that there was no meeting
of the minds (80) or no agreement (37). This defense implicates the
core values of mediation theory, that mediation is a process based on
self-determination. Any agreement that is enforced must be the
agreement of the parties and not an agreement imposed on them.

129. 187 F.3d 363 (4th Cir. 1999). See also Hanson v. Hanson, No. C2-98-1427,
1999 WL 31174, at *2 (Minn. Ct. App. Jan. 26, 1999) (remanding a case involving a
mediated marital property settlement incorporated in a judgment, in part because the
trial judge used the wrong legal standard in determining whether there was fraud); In
re T.D., 28 P.3d 1163, 1167–68 (Okla. Civ. App. 2001) (remanding an order terminat-
ing parental rights pursuant to a mediated settlement agreement to determine
whether the mediation process provided sufficient due process protection).
130. Ashley Furniture Indus. Inc. v. SanGiacomo N.A., Ltd., 187 F.3d 363, 377
(4th Cir. 1999).
131. Id. at 378.
132. Id. at 377–78.
133. See, e.g., Georgos v. Jackson, 762 N.E.2d 202, 203 (Ind. Ct. App. 2002) (as-
serting lack of assent, no meeting of the minds, mistake, fraud, lack of consideration,
and unconscionabililty); Adams v. Adams, 11 P.3d 220, 221 (Okla. Civ. App. 2000)
(alleging defenses of fraud, duress, undue influence, or mistake).
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Although not explicit from the opinions, some of these cases dis-
puting whether an agreement was reached appear to represent situa-
tions where parties simply changed their minds once free from the
immediate pressures of the mediation.134 Mediation theory is ambig-
uous about how to treat an agreement that had actual but fleeting
assent. While ADR scholars might disagree about whether the goal
of self-determination is fulfilled by enforcing a settlement to which a
party agrees during mediation but immediately rejects,135 traditional
contract law is more certain and less forgiving. Absent some well-
established and narrowly drawn exception,136 courts routinely en-
force parties’ settlements. Traditional contract law centers on objec-
tive manifestation of assent—what the parties said. Mediation’s core
value of self-determination is concerned less with what was said and
more with what the parties actually wanted or believed.137
In a situation where a party manifests agreement at the media-
tion but, free from the pressure of the mediation session, has a
change of heart, the party has no recognized contract defense to an
enforcement claim.
While some cases reflect a change of mind, others present true
misunderstandings. These cases raise difficult factual issues about
whether an agreement was actually reached or whether there was
agreement on some, but not all, material terms. Again, these issues
are resolved based on common law rules of contract formation, absent

134. See, e.g., Esser v. Esser, 586 S.E.2d 627, 628 (Ga. 2003) (allowing spouse to
contest child support award based on mediated agreement after she changed counsel);
Govia v. Burnett, No. Civ. 685/1998, 2003 WL 21104925, at *3–5 (V.I. May 5, 2003)
(enforcing settlement despite claim that party, who was represented by counsel, was
unaware of its terms when she signed it stating that strong public policy favoring
enforcing settlements would be frustrated by voiding a settlement merely because a
party becomes dissatisfied with the terms); Vernon v. Acton, 732 N.E.2d 805, 810
(Ind. 2000) (allowing party to refuse to abide by oral agreement entered into in
mediation).
135. See generally Welsh, supra note 2. R
136. While contract principles might lead to enforcement of the agreement, with-
drawn consent might preclude a court from entering a consent decree. See Envtl.
Abatement, Inc. v Astrum R. E. Corp., 27 S.W.3d 530, 541–42 (Tenn. Ct. App. 2000)
(ruling that because the agreement was not in writing or recited in open court, the
trial judge could not enter a consent decree if a party withdrew agreement prior to the
order).
137. See Kimberlee K. Kovach, New Wine Requires New Wineskins: Transforming
Lawyer Ethics for Effective Representation in a Non-Adversarial Approach to Problem
Solving Mediation, 28 FORDHAM URB. L.J. 935, 942–43 (2001) (“The goals of mediation
are quite different than the goals of the litigation system.”); Thompson, supra note
122, at 556 (“[W]hile the focus under contract law is on what the parties said, the R
focus in a mediation should be on what the parties want.”).
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Spring 2006] Disputing Irony 79

a specific statute that adds additional requirements before enforcing

mediated settlement agreements.138
What might look like an agreement frequently is nothing more
than an agreement “in principle,” or an agreement to agree. Often,
the purported agreement is an oral agreement with the expectation
that a more formal written agreement with specific terms will be
forthcoming.139 Sometimes parties actually execute an informal writ-
ten memorandum or document purporting to be an agreement that
contemplates the execution of a more formal written document.
When this issue is raised the courts must decide whether a final
agreement has in fact been reached. Did the parties contemplate
only the formality of writing a memorial of the agreement, or did the
parties reach a tentative agreement or agreement in principle only
(which is subject to reaching later agreement when all terms are
flushed out)? Again, courts usually apply general contract law princi-
ples to resolve these issues.140
In many of these cases the parties are specifically disputing the
terms of releases.141 For example, in Chappell v. Roth,142 the North
Carolina Supreme Court refused to enforce a purported agreement
signed by the parties that contemplated a subsequent “full and com-
plete release, mutually agreeable to the parties.”143 Either because

138. See generally Deason, supra note 90; Robinson, supra note 8; see also Thomp- R
son, supra note 122, at 541–47. R
139. See, e.g., Catamount Slate Prods., Inc. v. Sheldon, 845 A.2d 324, 331 (Vt.
2003) (finding that the parties did not intend to be bound until a final fully complete
document was executed); Riner v. Newbraugh, 563 S.E.2d 802, 805–06 (W. Va. 2002)
(refusing to enforce an alleged agreement despite mediator testimony that the parties
reached agreement when the parties subsequently refused to sign the writing); Ken-
drick v. Barker, 15 P.3d 734, 738–39 (Wyo. 2001) (enforcing oral mediation agreement
in the face of a claim that the agreement was contingent on agreeing to a subsequent
written document).
140. See generally Deason, supra note 90 (addressing the application of contract R
law principles to the enforcement of mediation agreements).
141. See, e.g., Coulter v. Carewell Corp. of Okla., 21 P.3d 1078, 1082–84 (Okla.
Civ. App. 2001) (holding that acceptance of an offer to settle implicitly includes a
promise to execute a release); Inwood Int’l Co. v. Wal-Mart Stores, Inc., 243 F.3d 567
(Fed. Cir. 2000) (enforcing a mediated settlement agreement that contemplated sub-
sequent execution of a more formal document and releases); Am. Network Leasing
Corp. v. Corp. Funding Houston, Inc., No. 01-00-00789-CV, 2002 WL 31266230 (Tex.
App. Oct. 10, 2002) (refusing to enforce an alleged agreement because the writing did
not include all of the material elements including the release).
142. 548 S.E.2d 499 (N.C. 2001), reh’g denied, 553 S.E.2d 36 (N.C. 2001). See also
Golding v. Floyd, 539 S.E.2d 735, 738 (Va. 2001) (refusing to enforce a signed, written
“Settlement Agreement Memorandum” that was made “subject to” a more formal
agreement).
143. Chappell v. Roth, 548 S.E.2d 499, 500 (N.C. 2001).
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80 Harvard Negotiation Law Review [Vol. 11:43

of physical exhaustion or a belief that the release is pro forma, par-

ties who reach agreement on the substantive issues tend to leave for-
malizing the precise terms of the release until a later time. In the
interest of finality and avoiding future litigation, attorneys who be-
lieve they have reached a mediated settlement would be well advised
to have all parties sign off on the terms of any release before leaving
the mediation session.

b. Fraud/Misrepresentation

In fifty-five opinions, mediation participants claimed that their

agreement should not be enforced because it was entered into
through fraud or misrepresentation. As a general rule, courts are
willing to allow parties to choose to make “bad bargains.” Parties
have every right to agree to a settlement that others might find un-
fair, but the law contemplates some integrity in the bargaining or
mediation process. When fraudulent material statements induce a
party to agree, the agreement should not be enforced in the name of
self-determination or in the name of freedom to contract.
The fraud or misrepresentation defense was successful in whole
or part in only nine cases.144 Most of these cases were family law
cases that involved claims of failure to disclose145 or misrepresenta-
tion146 during the mediation. The rarity of success on these defenses

144. In three cases where fraud was alleged, the court reversed or remanded on
other grounds: Long v. City of Hoover, 855 So. 2d 548, 551 (Ala. Civ. App. 2003)
(reversing on procedural grounds); In re T.D., 28 P.3d 1163, 1167 (Okla. Civ. App.
2001) (finding no fraud but reversing mediated agreement terminating parental
rights on grounds of fundamental due process); and Watkins v. Lundell, 169 F.3d 540,
545–47 (8th Cir. 1999) (remanding punitive damage award in action involving breach
of and fraudulent inducement of mediated settlement agreement). In Cooper v. Aus-
tin, 750 So. 2d 711, 713 (Fla. Dist. Ct. App. 2000), the court found that presenting a
mediated settlement agreement that was obtained by extortion was a “fraud on the
court,” which presents a different type of fraud issue. This case is included here, as
well as in the cases involving duress.
145. Boyd v. Boyd, 67 S.W.3d 398, 404–05 (Tex. App. 2002) (refusing to enforce
mediated settlement because of husband’s intentional non-disclosure of assets); Kalof
v. Kalof, 840 So. 2d 365, 366–67 (Fla. Dist. Ct. App. 2003) (remanding to determine
whether mediated property settlement should be set aside because of non-disclosure);
Adams v. Adams, 11 P.3d 220, 221–22 (Okla. Civ. App. 2000) (remanding to deter-
mine if mediated settlement agreement was fair, including whether parties had dis-
closed all material matters).
146. Still v. Still, 835 So. 2d 376, 376 (Fla. Dist. Ct. App. 2003) (refusing to enforce
mediated settlement where mother made false statements about her plans to raise
the child in the marital home); Hanson v. Hanson, No. C2-98-1427, 1999 WL 31174,
at *2 (Minn. Ct. App. Jan. 26, 1999) (remanding to determine whether there was
fraud); Johnson v. Johnson, 738 So. 2d 508, 510 (Fla. Dist. Ct. App. 1999) (remanding
for evidentiary hearing or repleading on the issue of fraud).
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likely reflects the reality that judges are willing to tolerate a broad
range of adversarial tactics in both the negotiation and in the media-
tion process. The legal standard is hard to meet. To mount a success-
ful defense of fraud or misrepresentation, there must be proof not
only that the adverse party147 made a misrepresentation of material
fact that induced the agreement, but also that it was reasonable to
rely on that misrepresentation. It may be unreasonable per se to rely
on statements made by an adverse party in the context of a mediation
taking place in the midst of a lawsuit. Lawsuits are adversarial. For
example, in In re Patterson,148 the Washington Court of Appeals re-
jected a claim of fraud, in part because the court believed a party had
no right to rely on a representation of value made in a mediation
when the party could have arranged his own appraisal.149 The clear
lesson for mediation participants is to remember that negotiating in
the context of litigation is part of an adversarial process. In media-
tion, a form of facilitated negotiation often billed as a conciliatory
process, parties must retain their adversarial vigilance.150

c. Duress

Duress, a typical common law defense to a contract enforcement

action, has been infrequently raised in published opinions addressing
mediation issues. Claimants have argued some form of duress151 in

147. See, e.g., Brinkerhoff v. Campbell, 994 P.2d 911, 915–16 (Wash. Ct. App.
2000) (refusing to attribute a mediator’s mistaken representation to the adverse
party).
148. 969 P.2d 1106, 1110–11 (Wash. Ct. App. 1999). See also Chitkara v. N.Y. Tel.
Co., 45 F.App’x 53, 55 (2d Cir. Sept. 6, 2002) (finding it unreasonable for a party to
rely on a mediator’s erroneous statement of the predicted litigation value of a claim
when the statement was based on a fact that the party could have verified).
149. See also Glover v. Torrence, 723 N.E.2d 924, 933 (Ind. Ct. App. 2000) (sug-
gesting that the spouse should not have relied on husband’s mediation submission
under oath and should have independently verified his income); UNIF. MEDIATION
ACT, prefatory note 1 (2003) (encouraging parties to verify all material representa-
tions rather than relying on what the adverse party says during mediation since rule
of privilege may preclude admissibility of the statements).
150. Indeed, the prefatory note to the Uniform Mediation Act reflects the reality
“that mediation is not essentially a truth-seeking process,” warning parties not to
trust the representations of adverse parties and instead to seek verification. UNIF.
MEDIATION ACT, prefatory note 1 (2003).
151. We included as duress opinions cases where the claimant argued that he or
she was pressured, or coerced into signing the agreement. See, e.g., Poptic v. Poptic,
No. CA 2002-09-215, 2003 WL 23095452, at *2 (Ohio Ct. App. Dec. 31, 2003) (refusing
to enforce separation agreement because husband claimed he was pressured to agree);
Richman v. Coughlin, 75 S.W.3d 334, 335–36 (Mo. Ct. App. 2002) (claiming that
agreement was reached by coercion); De M. v. R. S., No CN00-07593, 2002 WL
31452433, at *1 (Del. Fam. Ct. May 14, 2002) (claiming party was intimidated at the
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82 Harvard Negotiation Law Review [Vol. 11:43

only thirty-six opinions in the five-year period. The opinions were

evenly spread over the five years and dispersed throughout many ju-
risdictions. As might be expected, the largest group of duress cases,
constituting sixteen opinions, were within the emotionally charged
context of family law mediations.
To make a successful duress defense the proponent must estab-
lish that a wrongful threat by the adverse party deprived the propo-
nent of free choice, resulting in an unfair agreement benefiting the
adverse party.152 As with other contractual defenses, the standard is
quite difficult to meet in a mediation context. A mediation party was
successful in claiming duress in only one of the thirty-six opinions—
Cooper v. Austin.153 But even in this successful case, the court
strayed a bit from traditional duress analysis. In Cooper, a wife ex-
tracted a favorable settlement in a mediation by sending her husband
a note threatening to turn over incriminating juvenile sex pictures to
the prosecutor if he did not agree to the settlement.154 The court
found the “extorted agreement” to be a “fraud on the court” and re-
fused to enforce it.155 In a few other cases, courts denied summary
judgment156 or remanded matters back to the trial court for a factual
determination about whether an agreement should be enforced in the
face of a claim of duress.157
In seven of the cases, the claim of duress was aimed in part at
the conduct of the mediator. These cases are discussed below in the
Part dealing with mediator misconduct.158

mediation in part because she had no attorney and the other party did have an
attorney).
152. See ARTHUR L. CORBIN ET AL., CORBIN ON CONTRACTS 40 (Joseph M. Perillo
ed., rev. ed. 2005).
153. 750 So. 2d 711, 711 (Fla. Dist. Ct. App. 2000).
154. Id. Arguably, a second successful case is Poptic, 2003 WL 23095452, at *2,
where the court refused to enforce a separation agreement because the husband said
that he was pressured to sign it.
155. Cooper v. Austin, 750 So. 2d 711, 713 (Fla. Dist. Ct. App. 2000).
156. See, e.g., Wichman v. County of Volusia, 110 F. Supp. 2d 1354, 1356–57 (M.D.
Fla. 2000) (denying summary judgment on the issue whether the employee volunta-
rily waived rights under the ADA).
157. See, e.g., Kalof v. Kalof, 840 So. 2d 365 (Fla. Dist. Ct. App. 2003) (remanding
to determine whether agreement entered into by duress or fraud); Adams v. Adams,
11 P.3d 220, 221–22 (Okla. Civ. App. 2000) (remanding to determine if agreement was
fair and reasonable); Vitakis-Valchine v. Valchine, 793 So. 2d 1094 (Fla. Dist. Ct. App.
2001) (remanding for consideration of wife’s allegation that mediator committed mis-
conduct by improperly influencing coercing agreement, noting an exception to the
general rule that coercion and duress by a third party is insufficient to invalidate an
agreement between principals).
158. See infra notes 229–46 and accompanying text. R
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Spring 2006] Disputing Irony 83

Concern about undue pressure placed on parties has been widely

expressed in scholarly debates about the fairness of the mediation
process.159 Rarely do courts find such pressure grounds for reversal.
On the other hand, the dearth of reported cases litigating a claim of
duress may not be conclusive evidence that parties to mediations are
free from undue pressure. Most of the scholarly concern addresses
the pressure imposed by the mediator, not by the adverse party.160
As discussed above, the common law defense of duress focuses on
threats by the adverse party, not by third parties such as the media-
tor, or for that matter, by the party’s counsel. Further, a party’s be-
lief that they were subjected to unfair pressure may be difficult to
articulate and might be disregarded by their lawyer, who likely
would have a different view of the process. Even if lawyers appreci-
ated that their clients felt pressured to agree, most attorneys, know-
ing the near impossibility of succeeding on a duress claim, should
discourage their clients from litigating based on this type of defense.

d. Undue Influence

Only thirteen opinions addressed a defense of undue influ-

ence.161 Magistrate Brazil’s opinion in Olam v. Congress Mortgage
Co.162 provides the most intensive discussion of undue influence. Al-
though the plaintiff was sixty-five years old, suffered from high blood

159. See, e.g., Craig A. McEwen, Nancy H. Rogers & Richard J. Maiman, Bring in
the Lawyers: Challenging the Dominant Approaches to Ensuring Fairness in Divorce
Mediation, 79 MINN. L. REV. 1317 (1995) (addressing fairness in divorce mediation);
Welsh, supra note 122, at 798, 799–816 (expressing a concern that the focus on settle- R
ment and the lawyers’ preferences for evaluative mediations reducing the role of par-
ticipants may detract from assuring procedural justice in court-connected mediation);
Carrie Menkel-Meadow, Pursuing Settlement in an Adversary Culture: A Tale of Inno-
vation Co-Opted or “The Law of ADR,” 19 FLA. ST. U. L. REV. 1, 3 (1991) (“In short,
courts may try to use various forms of ADR to reduce caseloads and increase court
efficiency at the possible cost of realizing better justice.”).
160. James J. Alfini, Trashing, Bashing and Hashing It Out: Is This the End of
“Good Mediation”?, 19 FLA. ST. U. L. REV. 47, 66–73 (1991) (characterizing mediator
styles); Welsh, supra note 2, at 68–79. R
161. See, e.g., Taylor v. Prudential Ins. Co. of Am., 91 F.App’x 746, 747 (3d Cir.
2003) (finding no undue influence when plaintiff signed the agreement, reviewed it
line by line with counsel, was a college graduate with a business administration de-
gree, and actively participated in the mediation); Crupi v. Crupi, 784 So. 2d 611,
613–14 (Fla. Dist. Ct. App. 2001) (denying claim that mediated settlement agreement
in divorce action was obtained by undue influence where party testified that she felt
pressure and anxiety and was taking medication, but also testified that nobody un-
duly influenced her, although a hurricane was predicted for the next day); Milazzo v.
U.S. Postal Serv., No. 02-3403, 2003 WL 839497, at *1 (Fed. Cir. Mar. 6, 2003) (re-
jecting claim of misinformation and coercion leading to agreement to retire).
162. 68 F. Supp. 2d 1110, 1139–51 (N.D. Cal. 1999).
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84 Harvard Negotiation Law Review [Vol. 11:43

pressure, headaches and abdominal pains, and testified that she was
in pain, weak and dizzy, and that she was pressured by her lawyer,
the defendants and their counsel, the court found that this agreement
obtained at 1:00 A.M. after fifteen hours of mediation was not ob-
tained by undue influence.163 There are no opinions in our database
where a court found undue influence, although in one case, Adams v.
Adams,164 the matter was remanded back to the trial judge for a fac-
tual assessment. In several cases, the claim of undue influence was
targeted, in part, at the conduct of the party’s counsel.165

e. Mistake

Mistake is a traditional contract defense to the enforcement of a

settlement agreement. To establish a successful mistake defense, the
proponent usually must prove that the mistake is mutual and relates
to a material fact that is basic to the agreement.166 If the mistake is
unilateral, it may be difficult, if not impossible, to establish a valid
defense.167 For unilateral mistake, the proponent must establish the
basic material fact elements of mutual mistake, and in addition that
the adverse party either had reason to know of or somehow caused
the mistake, or that enforcing the agreement would be unconsciona-
ble.168 Under both the unilateral and mutual mistake doctrine, the

163. Olam v. Congress Mortgage Co., 68 F. Supp. 2d 1110, 1139–51 (N.D. Cal.
1999).
164. 11 P.3d. 220, 221–22 (Okla. Civ. App. 2000) (remanding a mediated divorce
settlement agreement for a determination of whether it was fair, just, and
reasonable).
165. See, e.g., Brosnan v. Gillin, No. A097229, 2003 WL 1558257, at *3–4 (Cal. Ct.
App. Mar. 26, 2003) (denying claim of undue influence and enforcing a fee settlement
and release between a party and her lawyer obtained in conjunction with a mediated
settlement agreement negotiated by the lawyer with a third party); Mardanlou v.
Gen. Motors Corp., 69 F.App’x 950, 952 (10th Cir. 2003) (rejecting claim that medi-
ated settlement should be set aside because party was taking medications that made
him “easily manipulated and persuaded” and was pressured by the mediator, the
court, and his own attorney); Advantage Props., Inc., v. Commerce Bank, No. 00-3014,
2000 WL 1694071, at *4 (10th Cir. Nov. 13 2000) (claiming undue influence and du-
ress when the argument really was focused on whether the party’s counsel provided
adequate representation).
166. See, e.g., Sheng v. Starkey Labs, Inc., 117 F.3d 1081, 1084 (8th Cir. 1997)
(stating that any mistake justifying rescission must “go to the very nature of the
deal”).
167. See, e.g., Ghahramani v. Guzman, 768 So. 2d 535, 537 (Fla. Dist. Ct. App.
2000) (stating that a mediated settlement agreement should not be set aside on the
grounds of unilateral mistake).
168. See RESTATEMENT (SECOND) OF CONTRACTS § 153 (1981).
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proponent cannot have agreed expressly or implicitly to assume this

risk.169
The opinions that dealt with mistake were not always precise
about whether the party claimed the mistake was unilateral or mu-
tual. We found thirty-four opinions that appear to be claims of mu-
tual mistake and nineteen claims of unilateral mistake. The mutual
mistake cases included issues of mistake in integration—the written
agreement or court order did not correctly represent the agree-
ment170—as well as mistakes about a material fact that went to the
basis of the bargain.171 In sixteen of the mutual mistake cases, the
agreement had been incorporated into a court order, triggering proce-
dural rules with regard to relief from judgment further restricting
any relief for a claimed mistake.172 The court refused to enforce the
agreement in only four of the mutual mistake opinions.173 Two cases
were remanded.174 None of the unilateral mistake claims were
successful.175

169. See id. at §§ 152–154.

170. See, e.g., DR Lakes, Inc. v. Brandsmart U.S.A., 819 So. 2d 971, 974–75 (Fla.
Dist. Ct. App. 2002) (remanding for a factual determination whether a clerical error
in the settlement document was a clerical error).
171. See, e.g., Boardman v. Boardman, No. C7-02-974, 2002 WL 31867759, at *2
(Minn. Ct. App. Dec. 24, 2002) (affirming trial court decision to amend settlement
agreement based on erroneous appraisal).
172. See, e.g., id.; Paisley v. Paisley, No. 01-99-00664-CV, 2000 WL 19660, at *2
(Tex. App. Dec. 24, 2002) (providing relief when the parties relied on an erroneous
appraisal); Hanson v. Hanson, No. C2-98-1427, 1999 WL 31174, at *2 (Minn. Ct. App.
Jan. 26, 1999) (concluding that trial court erroneously vacated a mediated settlement
based on mistake when it applied the standard for vacating a stipulation rather than
the standard for vacating a judgment and decree where the mediated settlement had
been merged into a final judgment and decree and judgment entered).
173. Boardman, 2002 WL 31867759, at *2 (providing relief when the parties relied
on an erroneous appraisal); Bolle, Inc. v. Am. Greetings Corp., 109 S.W.3d 827,
834–35 (Tex. App. 2003) (refusing to enforce settlement agreement where parties did
not consider the implications of the settlement with regard to patent litigation); In re
Karst, 34 P.3d at 1133 (refusing to enforce parties’ agreement of shared custody when
document was drafted by non-lawyer, and the parties did not intend to use that term
as defined in law); Richardson v. O’Byrne, 830 So. 2d at 1020 (refusing to enforce the
agreement that was allegedly entered into based on mistake about the amount of in-
terest owed because the offer to settle was withdrawn prior to agreement becoming
final).
174. DR Lakes, Inc., 819 So. 2d at 974–75 (remanding for a factual determination
whether a clerical error in the settlement document was a clerical error); Adams v.
Adams, 11 P.3d 220, 221 (Okla. Civ. App. 2000) (remanding to determine whether the
property settlement agreement was fair, including whether there was full disclosure).
175. However, two opinions remanded the matter back to the trial court based on
other issues: Brinkerhoff v. Campbell, 994 P.2d 911, 915–16 (Wash. Ct. App. 2000)
(remanding to determine whether defendant made an affirmative misrepresentation);
and In re Hanson, No. C2-98-1427, 1999 WL 31174, at *2 (Minn. Ct. App. Jan. 26,
1999) (remanding to determine if there was fraud on the court).
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86 Harvard Negotiation Law Review [Vol. 11:43

f. Unconscionability

Many of the parties opposing the enforcement of a mediated set-

tlement agreement raised some type of fairness argument,176 but few
opinions specifically addressed a claim that enforcing the agreement
would be unconscionable. Even when raised, the defense of uncon-
scionability did not merit extensive analysis by the courts. Fre-
quently, the claim of unconscionability was coupled with claims of
duress and/or misrepresentation and reflected a more general argu-
ment that it would be unfair to enforce the agreement.177 Most of the
opinions involve child support or custody agreements that implicated
not only the rights of the mediating parties but also the rights of the
dependent children.178 For example, in Smith v. Smith,179 a divorce
proceeding, the Tennessee Court of Appeals affirmed a trial judge’s
decision to modify a mediated settlement agreement that absolved
the husband of any child support responsibilities on the grounds that
the agreement was against public policy.180
A related issue concerns the voluntariness of waivers of parental
rights in family mediations. For example, the Iowa Supreme Court

176. See Kim v. D.M. Song & Dallas Auto Body Repairs, No. 05-01-01197-CV, 2002
WL 1380416 (Tex. Ct. App. June 27, 2002 ) (ruling that a generalized claim that a
mediated settlement agreement was unfair presents no legal issue for review)
177. See, e.g., Crupi v. Crupi, 784 So. 2d 611, 612–13 (Fla. Dist. Ct. App. 2001)
(denying claim that mediated divorce settlement should be set aside because of “un-
reasonableness” or “unfairness”); Kendrick v. Barker, 15 P.3d 734, 740–41 (Wyo.
2001) (enforcing personal injury settlement denying claims that unforeseen injuries
made the agreement unconscionable).
178. In some cases, the courts did not refer to the doctrine of unconscionability but
construed statutes that imposed some duty on the court to consider whether the
agreement was fair. See, e.g., F.B.C., III v. B.A.C., No. CN89-8431, 2002 WL 1939950,
at *4 (Del. Fam. Ct. Mar. 25, 2002) (modifying a custody order based on the best
interests of the child); Reno v. Haler, 734 N.E.2d 1095, 1101 (Ind. Ct. App. 2000)
(ruling that a settlement agreement involving child custody and visitation must be
approved by the court and will be approved unless unfair, unreasonable, or involving
manifest injustice).
179. No. M2000-02186-COA-R3-CV, 2001 WL 1035174 (Tenn. Ct. App. Sept. 11,
2001). See also In re Marriage of Caffrey, No. 00-307, 2002 WL 1484015, at *3 (Mont.
Apr. 11, 2002) (ruling that court need not find that the agreement was unconscionable
to modify child support agreement that is not incorporated in a decree, and that the
modification was not unconscionable).
180. Smith v. Smith, No. M2000-02186-COA-R3-CV, 2001 WL 1035174, at *5–7
(Tenn. Ct. App. Sept. 11, 2001). See also Swanson v. Swanson, 580 S.E.2d 526, 527
(Ga. 2003) (finding void on public policy grounds a mediated settlement that included
a waiver of child support in exchange for taking less alimony).
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in Lamberts v. Lillig181 refused to enforce an alleged mediated settle-

ment between a father and the maternal grandparents regarding vis-
itation where there was no evidence the father knowingly
relinquished his constitutional parental caretaking interest when he
entered into the agreement.

g. Technical Defenses
Rarely did courts refuse to enforce an agreement based on purely
technical defenses. Haghighi v. Russian-American Broadcasting
Co.182 is the prototypical exception in this category. Ultimately, the
courts in Haghighi refused to enforce an otherwise fair settlement
agreement signed by the parties and their attorneys, which included
a clause that the writing was a “Full and Final Mutual Release of all
Claims” because the document did not also include the words “It was
binding,” as required by statute.183 California has similar legisla-
tion,184 as does Texas,185 but fortunately there are few cases that
turn on such technicalities.
Twenty-five cases specifically involved a statute of frauds de-
fense that the agreement was not in writing. A larger number (40)
addressed the question of whether the agreement was signed by the
appropriate parties. The lack of a signature could constitute a tech-
nical defense if the parties actually reached agreement but simply

181. 670 N.W.2d 129, 134–35 (Iowa 2003). See also In re T.D., 28 P.3d 1163, 1168
(Okla. Civ. App. 2001) (refusing to enforce a mediated settlement agreement absent
additional factual findings where a mother with full advice and representation of
counsel agreed to terminate her parental rights but the agreement contained incon-
sistent elements raising fundamental due process questions regarding whether the
mother knowingly waived her parental rights).
182. 173 F.3d 1086, 1088–89 (8th Cir. 1999). The two other published opinions
dealing with this case were in 1998 and not included in this database. Haghighi v.
Russ.-Am. Broad. Co., 945 F. Supp. 1233, 1234–35 (D. Minn. 1996) (enforcing media-
tion settlement agreement that did not include specific language that “it was bind-
ing”); Haghighi v. Russ.-Am. Broad. Co., 577 N.W.2d 927, 929–30 (Minn. 1998)
(refusing to enforce a mediated settlement agreement that stated it was a “full and
final mutual release of all claims” signed by the parties and by counsel because the
agreement did not include the words “this is binding” as required by statute).
183. See generally James R. Coben & Peter N. Thompson, The Haghighi Trilogy
and the Minnesota Civil Mediation Act: Exposing a Phantom Menace Casting a Pall
Over the Development of ADR in Minnesota, 20 HAMLINE J. PUB. L. & POL’Y 299
(1999).
184. See CAL. EVID. CODE § 1123 (2002) (providing that absent consent to admit, a
written mediated settlement agreement is not admissible unless it includes language
that it is admissible or that it is enforceable).
185. See TEX. FAM. CODE ANN. § 6.602 (2002) (providing that a mediated settle-
ment agreement in a family law matter is enforceable only if it includes, among other
matters, a “prominently displayed statement that is in boldfaced type or capital let-
ters or underlined, that the agreement is not subject to revocation”).
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88 Harvard Negotiation Law Review [Vol. 11:43

failed to obtain the necessary signatures. It is always possible, how-

ever, that the parties did not sign a writing because they in fact had
not reached agreement. Only three cases raised the truly technical
issue that an otherwise valid agreement should not be enforced be-
cause the writings did not include certain magic words.186
However, these technical statutes, designed to decrease litigation
and increase certainty, can in fact generate litigation. In Cayan v.
Cayan,187 the Texas Court of Appeals had to sort out the application
of two seemingly conflicting statutes affecting the enforceability of
mediation agreements. According to Section 6.602 of the Texas Fam-
ily Code, a mediated settlement agreement that complies with the
formality requirements set forth in the Code188 was binding and not
revocable. However, Texas Family Code § 7.006(a) allowed parties
who entered into a mediated property settlement to revoke agree-
ment prior to the “rendition of the divorce ‘unless the agreement is
binding under another rule of law.’”189 The court concluded that the
legislative intent was to make agreements that satisfy Section 6.602
binding and irrevocable.

h. Other Defenses
In 370 of the enforcement cases, the opinions addressed argu-
ments or defenses other than traditional contract defenses. The larg-
est group of these cases (127) involved standard issues of
interpretation190 or performance.191 For the most part, these cases

186. Haghighi v. Russ.-Am. Broad. Co., 173 F.3d 1086, 1088–89 (8th Cir. 1999)
(concluding that a mediated settlement satisfied statutory requirement that it promi-
nently displayed a statement that it is not subject to revocation); In re K.R.H., 784
N.E.2d 985 (Ind. Ct. App. 2003) (affirming trial court enforcement of agreement de-
spite parties’ failure to submit a joint stipulation of disposition).
187. 38 S.W.3d 161 (Tex. Ct. App. 2001).
188. At the time of this settlement, the statute required that “the agreement: (1)
provided in a separate paragraph that the agreement was not subject to revocation;
(2) was signed by each party to the agreement; and (3) was signed by the party’s
attorney, if any, who was present at the time the agreement was signed.” Id. at 165
n.5.
189. Id. at 164 (quoting TEX. FAM. CODE ANN. § 7006(a) (2002)).
190. Nearly all of the enforcement cases, other than the opinions raising formation
issues, involved an interpretation of the contract. We attempted to include in this
category only those cases that raised interpretation issues and not a specific contract
defense. See, e.g., Butler v. Caldwell, No. 48931-3-I, 622 WL 554952, at *3–4 (Wash.
Ct. App. Apr. 15, 2002) (determining that a delivery of an appraisal by fax started the
three day period for rejection set forth in the mediated settlement agreement); Cas-
well v. Anderson, 527 S.E.2d 582, 584 (Ga. Ct. App. 2000) (interpreting clause in me-
diated settlement agreement setting forth compensation for withdrawing partner);
Goldberg v. Goldberg, No. 148, 100-B, 1999 WL 542190, at *1 (D. Tex. Apr. 27, 1999)
(interpreting mediation agreement to allow for religious training of daughter in a
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Spring 2006] Disputing Irony 89

were handled by the courts as typical contract disputes. The next

largest group of opinions (46) addressed some type of defense relating
to changed circumstances, most typically in family law proceedings
modifying custody, visitation, or support orders.192 Generalized
claims of unfair process or public policy concerns were raised in
twenty-four opinions.
Seventy-nine opinions addressed the enforcement of mediated
agreements that had a direct impact on parties not present at the
mediation. In thirty-four of the opinions, the courts were deciding
whether to approve a mediated settlement agreement in a class ac-
tion lawsuit. Third-party impact cases came up in other contexts as
well. For example, in Peoples Mortgage Corp. v. Kansas Bankers
Surety Trust Co.,193 the court had to determine whether a mediated
settlement agreement entered into by an insured was made in good
faith and reasonable so that the insured could recover indemnifica-
tion against the insurance company.

IV. CONDUCT OF PARTICIPANTS

A. Overview
In ninety-nine opinions, courts ruled on issues relating to ethics
or malpractice in mediation. Sixty-one of the opinions were pub-
lished decisions, including twenty-one state supreme court cases194
and three federal circuit court decisions.195 The cases break into five
general categories, listed in order of frequency: neutral misconduct
(34); lawyer malpractice (30); lawyer discipline (19); judicial ethics

mainline church, which would include Catholic and “churches in the Protestant faith
such as Presbyterian, Methodist, Baptist, Christian, Episcopalian” but not the Metro-
politan Church).
191. See, e.g., Baum v. Rockland Cmty. Coll., 299 F. Supp. 2d 172, 175 (S.D.N.Y.
2003) (addressing whether plaintiff executed a satisfactory release as required in the
settlement agreement); Blyth Software, Inc. v. Compass Software, Inc., No. 98-35977,
2000 WL 249296 (9th Cir. Mar. 3, 2000) (addressing payment of attorneys’ fees pursu-
ant to the settlement agreement).
192. See, e.g., In re N.Z.B, 779 So. 2d 508 (Fla. Dist. Ct. App. 2000) (amending a
custody agreement when mother died); Smith v. Smith, No. M2000-02186-COA-R3-
CV, 2001 WL 1035174 (Tenn. App. Sept. 11, 2001) (addressing changed circumstances
because father had relocated eight hours from mother and father had not been visit-
ing child); Adamson v. Dodge, 816 A.2d 455 (Vt. 2002) (addressing change in income).
193. 176 F. Supp. 2d 1199, 1206 (D. Kan. 2001).
194. See, e.g., Lawson v. Brown’s Day Care Ctr., Inc., 776 A.2d 390 (Vt. 2001);
Metz v. Metz, 61 P.3d 383 (Wyo. 2003); Shake v. The Ethics Comm. of the Ky. Judici-
ary, 122 S.W.3d 577 (Ky. 2003); Davidson v. Lindsey, 104 S.W.3d 483 (Tenn. 2003).
195. In re Anonymous, 283 F.3d 627 (4th Cir. 2002); In re County of Los Angeles,
223 F.3d 990 (9th Cir. 2000); Streber v. Hunter, 221 F.3d 701 (5th Cir. 2000), reh’g
and suggestion for reh’g en banc denied, 233 F.3d 576 (5th Cir. 2000).
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90 Harvard Negotiation Law Review [Vol. 11:43

(11); and lawyer conflict of interest (5). Often, the ethics issue is part
of a larger dispute about mediation. For example, seventeen ethics/
malpractice opinions were raised in the context of challenges to en-
forcement of mediated settlements,196 twenty-two opinions also ad-
dressed confidentiality,197 and twelve discussed issues at the
intersection of arbitration and mediation.198
While the codes of professional or judicial responsibility have
been the source of substantial discussion and debate and are policed
by various boards or tribunals, the roles and responsibilities of the
participants in the context of mediation are less developed and a bit
murky. Many jurisdictions have codes of conduct for mediators, as
well as boards with some type of enforcement power. However, even
in jurisdictions with these institutions, the regulatory process is just
beginning to develop norms for expected behavior. Much of the regu-
latory effort to date has been aimed more at protecting the secrecy
than the fairness of the mediation process. Litigated issues address-
ing the conduct of lawyers and mediators are separated into two cate-
gories: first, cases where a party raises attorney or mediator
misconduct as a defense in an enforcement action; and second, mal-
practice or ethical actions against the attorney or mediator.

B. Attorney Conduct
1. Attorney Misconduct as a Defense to Enforcement Claims
In twenty-one enforcement cases parties argued that their attor-
ney acted in excess of his authority in agreeing to the settlement.
This defense was rarely successful.199 In Caballero v. Wikse,200 the
plaintiff left the mediation, made representations that the plaintiff’s

196. See, e.g., Chitkara v. N.Y. Tel. Co., 45 F.App’x 53 (2d Cir. 2002); Golden v.
Hood, No. E1999-02443-COA-MR3-CV, 2000 WL 122195 (Tenn. Ct. App. Jan. 26,
2000); In re Marriage of Van Horn, No. H024181, 2003 WL 21802273 (Cal. Ct. App.
Aug. 6, 2003).
197. See, e.g., Avary v. Bank of Am., N.A., 72 S.W.3d 779 (Tex. App. 2002); Enter.
Leasing Co. v. Jones, 789 So. 2d. 964 (Fla. 2001); Lawson, 776 A.2d 390.
198. See, e.g., Crow Constr. Co. v. Jeffrey M. Brown Assocs., Inc., 264 F. Supp. 2d
217 (E.D. Pa. 2003); In re Cartwright, 104 S.W.3d 706 (Tex. App. 2003); Team Design
v. Gottlieb, 104 S.W.3d 512 (Tenn. Ct. App. 2002).
199. Several courts refused to enforce purported settlement agreements when
claims that the lawyers lacked authority were coupled with other valid defenses. See,
e.g., Behling v. Russell, 293 F. Supp. 2d 1178 (D. Mont. 2003) (refusing to enforce
purported agreement because, inter alia, it was not filed); Heuser v. Kephart, 215
F.3d 1186 (10th Cir. 2000) (refusing to enforce purported settlement for lack of consid-
eration). Moreover, successful lack of authority claims was not just limited to the
actions of attorneys. For example, in Suarez v. Jordan, 35 S.W.3d 268 (Tex. App.
2000), the court refused to enforce a written settlement reached in court-ordered me-
diation of a disputed easement, where the property owner’s son (without advice of
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Spring 2006] Disputing Irony 91

attorney had authority, and authorized the attorney to make a coun-

terproposal. Nonetheless, the plaintiff argued that counsel lacked
authority to bind him and that the subsequent agreement should not
be enforced. The Idaho Supreme Court initially agreed with the
plaintiff but withdrew this opinion and substituted another opinion
enforcing the settlement.201 In Tompkins v. Ramona Auto Services,
Inc.,202 the plaintiffs were represented by different counsel in their
separate wage claim and malicious prosecution claim against their
employer. Plaintiffs settled the malicious prosecution claim through
mediation. Notwithstanding the plaintiffs’ lawyer informing the de-
fendant that he did not represent the plaintiffs in the wage claim,
and that they were settling only the malicious prosecution claim, the
employer drafted and got the plaintiffs to sign a general release that
included both claims. The court held that when the plaintiffs chose to
cash the checks after realizing the mistake, the plaintiffs waived
their rights, and the settlement should not be reformed.
In addition to claims of lack of authority, specific acts of miscon-
duct were raised in twenty cases. These claims involved some varia-
tion of an argument that counsel placed undue pressure on their
clients to settle.203 These claims were usually coupled with other de-
fenses such as duress, mistake, or fraud.204 For example, in Golden

counsel and against wishes of his father) participated in the mediation and signed the
agreement.
200. No. 27995, 2003 WL 21697914 (Idaho July 23, 2003), opinion withdrawn and
superseded, 92 P.3d 1076 (Idaho 2004). See also Bennet v. Lacy, No. 14-03-00530-CV,
2003 WL 22945637 (Tex. App. Dec. 16, 2003) (finding that plaintiff, by not filing a
motion for new trial, waived the right to complain that a consent judgment signed by
plaintiff’s attorney was signed without the consent of the plaintiff).
201. See Caballero v. Wikse, No. 27995, 2004 WL 858710 (Idaho Apr. 22, 2004).
This 2004 opinion is not included in this database.
202. No. E030870, 2003 WL 22905330 (Cal. Ct. App. Dec. 10, 2003).
203. See, e.g., Gelfand v. Gabriel, No. SCO61373, 2002 WL 1397037, at *3 (Cal. Ct.
App. June 27, 2002) (enforcing mediated settlement agreement where defendant
claimed, among other things, that his counsel pressured him to sign without “fully
explaining what it meant”); Kendrick v. Barker, 15 P.3d 734, 741 (Wyo. 2001) (enforc-
ing mediated settlement agreement where plaintiff claimed that her attorney led her
to believe that she would be responsible for defendant’s attorneys fees if she lost at
trial and otherwise pressured her to settle). See also Bandera v. City of Quincy, 344
F.3d 47 (1st Cir. 2000) (staying judgment after jury verdict in favor of Title VII plain-
tiff, and remanding to trial court for determination of enforceability of pre-trial hand-
written mediated settlement against challenge that plaintiff’s attorney coerced
settlement by threat that plaintiff would be held in contempt).
204. See, e.g., Mardanlou v. Gen. Motors Corp., 69 F.App’x 950 (10th Cir. 2003)
(enforcing settlement despite plaintiff’s claims that he was pressured to settle by the
court, the mediator, and his own attorney); Tompkins, 2003 WL 22905330 (claiming
attorney misconduct, fraud, and duress); Olam v. Cong. Mortgage Co., 68 F. Supp. 2d
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92 Harvard Negotiation Law Review [Vol. 11:43

v. Hood,205 the plaintiff sought unsuccessfully to set aside a mediated

settlement agreement that the plaintiff had signed. Plaintiff main-
tained that his lawyer, counsel for the adverse party, and the media-
tor all pressured him.206 They insisted that if the plaintiff went to
trial he would recover very little and his lawyer would quit.207 The
court analyzed and rejected these claims using legal principles based
on misrepresentation theory.208 In Berg v. Bregman,209 the Califor-
nia Court of Appeals rejected a claim that the plaintiff’s attorney ex-
ercised undue influence by encouraging the party to settle in
mediation, in part because there was no showing that the attorney
received any unfair advantage as part of the settlement.

2. Attorney Ethics and Malpractice

Attorney conduct in mediation can give rise to malpractice or

ethical claims against the lawyer. The two most significant malprac-
tice cases came from opposite coasts. In Furia v. Helm,210 the Cali-
fornia Court of Appeals concluded that, although an attorney did not
establish an attorney-client relationship with a construction business
owner when the attorney acted as a mediator between the owner and
the attorney’s homeowner clients, the attorney was still potentially
liable for legal malpractice because he breached a duty of reasonable
care owed to the business owner by failing to fully and fairly disclose
that he did not intend to be entirely impartial as mediator.211 The
court found the disclosure obligation important because of the poten-
tial influence wielded by mediators. In particular, the court ex-
pressed concern that “[a] party to mediation may well give more
weight to the suggestions of the mediator if under the belief that the
mediator is neutral than if that party regards the mediator as aligned
with the interests of the adversary.”212

1110, 1141 n.46 (N.D. Cal. 1999) (raising numerous defenses including threats by
lawyer).
205. No. E1999-02443-COA-MR3-CV, 2000 WL 122195, at *1 (Tenn. Ct. App. Jan.
26, 2000). See also Olam, 68 F. Supp. 2d at 1141 n.46 (raising numerous defenses
including threats by lawyer).
206. Golden v. Hood, No. E1999-02443-COA-MR3-CV, 2000 WL 122195, at *1
(Tenn. Ct. App. Jan. 26, 2000).
207. Id.
208. Id. at *2.
209. No. B149130, 2002 WL 31256677, at *8 (Cal. Ct. App. Oct. 8, 2002).
210. 4 Cal. Rptr. 3d 357 (Cal. Ct. App. 2003), reh’g denied (Sept. 24, 2003). The
court ultimately found no liability, in essence finding the error harmless.
211. Id.
212. Id. at 365.
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Spring 2006] Disputing Irony 93

In Lerner v. Laufer,213 a New Jersey appellate decision, the court

dismissed a legal malpractice action against an attorney for alleged
failure to perform discovery or other investigative services necessary
to evaluate the merits of a mediated divorce settlement, where the
representation agreement specifically limited the scope of represen-
tation. The opinion offers critical support for a form of unbundled
legal services designed to both promote the use of mediation and si-
multaneously lower legal fees connected with divorce.214
Several opinions addressed claims of erroneous legal advice in
mediation. These claims usually fail for inability to establish causa-
tion and damages.215 But in Streber v. Hunter,216 the court affirmed
a finding of malpractice for erroneous tax advice and remanded for
calculation of damages. In Vanasek v. Underkofler,217 the court re-
versed a grant of summary judgment in the lawyer’s favor and re-
manded to decide whether the lawyer’s agreement to recess the trial
and engage in mediation without client knowledge or permission un-
necessarily delayed the lawsuit and cost the claimant the opportunity
to recover from a party who later went into bankruptcy.
In addition to the malpractice liability cases, the failings of attor-
neys in mediation are addressed in numerous disciplinary proceed-
ings. These cases detail a wide range of alleged improper conduct,
including:
• appearing for a client at mediation while under suspension
from the practice of law;218
• failing to communicate with client about a mediated settle-
ment agreement forwarded by opposing counsel;219
• disclosing privileged mediation communications in arbitration
proceedings concerning legal fees;220

213. 819 A.2d 471 (N.J. Super. Ct. App. Div. 2003), cert. denied, 827 A.2d 290 (N.J.
2003).
214. See generally Forrest Mosten, Unbundling of Legal Services and the Family
Lawyer, 28 FAM. L.Q. 421 (1994).
215. See, e.g., McGoffin v. Dahl, No. 27486-8-II, 2003 WL 21235453 (Wash. Ct.
App. May 28, 2003); McKnight v. Dean, No. 97-C-8939, 2000 WL 696796 (N.D. Ill.
May 30, 2000).
216. 221 F.3d 701 (5th Cir. 2000), reh’g and suggestion for reh’g en banc denied,
233 F.3d 576 (5th Cir. 2000).
217. 50 S.W.3d 1 (Tex. App. 1999), aff’d in part, rev’d in part, 53 S.W.3d 343 (Tex.
2001).
218. See, e.g., James v. Ky. Bar Ass’n, 13 S.W.3d 925 (Ky. 2000).
219. See, e.g., People v. Patterson, 2002 WL 1010111 (Colo. O.P.D.J. 2002).
220. See, e.g., In re Anonymous, 283 F.3d 627 (4th Cir. 2002).
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94 Harvard Negotiation Law Review [Vol. 11:43

• failing to schedule required mediations;221

• seeking to enforce mediated settlement without client
consent;222
• failing to pay mediation costs;223
• failing to pay monetary settlement of a mediated fee dispute in
a timely manner;224
• violating Professional Responsibility Rule 4.2 by mediating a
case with a party represented by counsel without notice to
counsel;225
• falsely telling a client that a wrongful termination suit had
been settled in mediation;226 and
• engaging in a conflict of interest by serving as mediator for
both parties in a matrimonial matter and then filing the final
divorce documents as attorney for one party, without disclos-
ing the service as mediator.227
Lawyer conflict of interest in mediation also was raised in the context
of motions to disqualify counsel.228

221. See, e.g., Iowa Supreme Court Bd. of Prof. Ethics & Conduct v. Rauch, 650
N.W.2d 574 (Iowa 2002); People v. Hohertz, No. 02PDJ071, 2003 WL 21982240 (Colo.
O.P.D.J. July 10, 2003); In re Disciplinary Proceedings Against Banks, 665 N.W.2d
827 (Wis. 2003).
222. See, e.g., Fla. Bar v. Rotstein, 835 So. 2d 241 (Fla. Dist. Ct. App. 2002), reh’g
denied (Jan. 10, 2003).
223. See, e.g., Inquiry Comm. v. Sexton, 102 S.W.3d 512 (Ky. 2003).
224. See, e.g., Cuyahoga County Bar Assoc. v. Maybaum, 787 N.E.2d 1180 (Ohio
2003).
225. See, e.g., Horowitz v. Weishoff, 723 A.2d 121 (N.J. Super. Ct. App. Div. 1999),
aff’d as modified, 787 A.2d 236 (N.J. Super. Ct. App. Div. 2001).
226. See, e.g., Fla. Bar v. Fredericks, 731 So. 2d 1249 (Fla. Dist. Ct. App. 1999).
227. See, e.g., In re Knight, 763 N.Y.S.2d 94 (N.Y. App. Div. 2003).
228. See, e.g., Korfmann v. Kemper Nat. Ins. Co., 685 N.Y.S.2d 282 (N.Y. App. Div.
1999) (reversing trial court and granting motion to disqualify plaintiff’s counsel be-
cause she would be a key witness in suit for damages for breach of agreement to medi-
ate, bad faith, and unfair settlement practices); Matluck v. Matluck, 825 So. 2d 1071
(Fla. Dist. Ct. App. 2002) (finding that trial court erred in not disqualifying a law firm
from representing a party in a post-dissolution custody case, when a member of the
firm previously acted as a mediator in the same proceeding).
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Spring 2006] Disputing Irony 95

C. Mediator Conduct

Despite considerable academic ink devoted to the subject of me-

diator liability229 and ongoing debates about quasi-judicial and statu-
tory immunity,230 there is a surprising dearth of cases alleging
mediator misconduct or ethical violations. As other authors have ob-
served, the chance of a mediator being successfully sued is remote.231
Nor is mediator misconduct commonly used as an enforcement
defense.

1. Mediator Misconduct as a Defense to Enforcement Claims

We divided the claims of mediator misconduct found in seven-

teen enforcement cases, into claims of mediator bias and claims of
mediator duress.232 In twelve opinions,233 a party claimed some
form of conflict of interest or bias on the part of the mediator. In
several of the cases, the court found that the claimed conflict was
cured by disclosure or knowledge.234 Certainly, mediators would be
well advised to disclose liberally all contacts with the parties involved
in the dispute and other potential conflicts of interest. Disclosure,
however, will not cure all conflicts. For example, the Court of Ap-
peals in New Jersey found an inherent conflict between the roles of
mediator and guardian ad litem that precluded one person from ful-
filling both roles.235 As mediator, the neutral would be privy to and
encourage confidential communications, but as guardian ad litem,

229. See generally Michael Moffitt, Ten Ways to Get Sued: A Guide for Mediators, 8
HARV. NEGOT. L. REV. 81 (2003).
230. See generally Scott Hughes, Mediator Immunity: The Misguided and Inequi-
table Shifting of Risk, 83 OR. L. REV. 107, 111 n.14 (2004) (listing scholarship, both
pro and con, concerning the advisability of mediator immunity).
231. See Michael Moffitt, Suing Mediators, 83 B.U. L. REV. 147 (2003) (discussing
the dearth of cases brought against mediators). See also KIMBERLEE K. KOVACH, ME-
DIATION, PRINCIPLES AND PRACTICE 458 (3d ed. 2004) (reporting that the number of
malpractice claims against mediators and arbitrators handled by one of the primary
insurers of ADR neutrals was small but was increasing from five to thirteen from
1993 to 1999).
232. We found one case involving a claim of misrepresentation by the mediator,
Vitakis-Valchine v. Valchine, 793 So. 2d 1094 (Fla. Dist. Ct. App. 2001). See also
Mardanlou v. Gen. Motors Corp., 69 F.App’x 950 (10th Cir. 2003) (enforcing settle-
ment despite claims that the party was pressured to settle by the court, the mediator,
and his own attorney).
233. In one opinion, the party raised both a claim of mediator bias and duress.
See, e.g., Mardanlou, 69 F.App’x 950.
234. See, e.g., Fishof v. Grajower, 691 N.Y.S.2d 507 (N.Y. App. Div. 1999) (enforc-
ing mediated settlement agreement where plaintiff and plaintiff’s counsel knew of
mediator’s financial relationship with the adverse party).
235. Isaacson v. Isaacson, 792 A.2d 525 (N.J. Super. Ct. App. Div. 2002).
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96 Harvard Negotiation Law Review [Vol. 11:43

the neutral was required to make findings and recommendations to

the court.236
In ten opinions, a party claimed that the mediator exerted undue
pressure or duress to exact agreement.237 In several of these cases,
the gist of the complaint centered on the mediator reciting a list of
“horribles” that the parties would certainly suffer if they did not set-
tle and had to experience the dreaded civil trial.238 It is clear that the
perspectives of the judges and mediators about the propriety of this
settlement technique may be different from the perspective of the
parties. The courts typically see nothing wrong with this sort of “re-
ality-testing.”239 For example, the appellate mediator in In re
Young240 ordered counsel to bring their clients to the mediation so
the mediator could provide his prediction that if they did not accept
the settlement offer they would jeopardize their receipt of any pay-
ments. When counsel balked at producing their clients, the Court of

236. Isaacson, 792 A.2d at 534–37. But in Scott v. District of Columbia, 197
F.R.D. 10 (D.D.C. 2000), which was not an enforcement case, a magistrate judge
maintained that he could serve both as a mediator and as a magistrate judge in
resolving a wrongful death action involving a minor child and her mother as plain-
tiffs, recognizing that as mediator the magistrate judge would be privy to confidential
information. In Matluck v. Matluck, 825 So. 2d 1071 (Fla. Dist. Ct. App. 2002), an-
other non-enforcement case, the court disqualified the husband’s law firm when the
mediator of the marital dispute joined that firm.
237. See, e.g., Chitkara v. N.Y. Tel. Co., 45 F.App’x 53, 55 (2d Cir. 2002) (affirming
a trial court’s order to enforce a mediated settlement despite plaintiff’s claim that the
settlement was procured through mediator coercion and fraudulent misrepresenta-
tion, noting that “[t]he nature of mediation is such that a mediator’s statement re-
garding the predicted litigation value of a claim, where that prediction is based on a
fact that can readily be verified, cannot be relied on by a counseled litigant whose
counsel is present at the time the statement is made.”); Gallagher v. Gallagher, No.
125000, 1999 WL 795683, at *2 (Va. Cir. Ct. Aug. 18, 1999) (claiming mediator brow-
beat party to exact settlement); In re BankAmerica Corp. Sec. Litig., 210 F.R D. 694,
705 (E.D. Mo. 2002) (rejecting claim that class action settlement should not be en-
forced because the mediator “strong-armed” class counsel).
238. See, e.g., Estate of Skalka v. Skalka, 751 N.E.2d 769, 772 (Ind. Ct. App. 2001)
(affirming when trial judge in settlement posture stated, “[b]ut if you people want to
continue fighting, I’m no longer going to be the mediator here, I’m going to be a judge.
You are going to go through the cost of this thing. It’s going to be financially draining
and I can tell you you’re going to wind up losing the property”); Golden v. Hood, No.
E1999-02443-COA-MR3-CV, 2000 WL 122195 (Tenn. Ct. App. Jan. 26, 2000) (com-
plaining that mediator represented that jury would not award him full amount of
medical expenses if he went to trial).
239. Welsh, supra note 2, at 64–78 (2000) (discussing court acceptance of pressure R
tactics in settlement discussions).
240. 253 F.3d 926 (7th Cir. 2001) (finding lawyer’s refusal to produce clients at
mediation unjustifiable).
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Appeals found that the lawyers were not justified. The court ad-
dressed, but summarily rejected, counsel’s concern that the mediator
was attempting to coerce the settlement.
Perhaps the most novel, albeit unsuccessful, claim of duress oc-
curred in Patterson v. Taylor,241 where a party claimed the mediator
coerced him into settling and not consulting with counsel by continu-
ally stating that if he “didn’t sign the agreement [he] would ruin [the
mediator’s] record of being always able to settle the case.”
In Vitakis-Valchine v. Valchine,242 the claim of mediator miscon-
duct was successful, but the court had to invent a legal theory to jus-
tify the result. Plaintiff maintained that her divorce settlement was
obtained after an eight-hour mediation in part because of coercion
and undue influence exerted by the mediator.243 According to the
plaintiff, the mediator threatened to tell the judge that she was the
cause of the settlement failure, speculated that the court would rule
against her, and offered opinions about the potential legal costs and
how refusing to settle would affect her pensions.244 Traditional con-
tract defenses of duress or undue influence were unavailable to plain-
tiff because under these theories the undue pressure must come from
the adverse party. Nonetheless, the court concluded that plaintiff
stated a claim for relief based on a theory of mediator misconduct.245
Florida has an elaborate set of rules governing the conduct of
mediators. The rules are aimed at protecting the parties’ right to
self-determination by limiting mediator coercion and the practice of
some mediators to provide opinions about the expected outcome of the
case.246

241. 969 P.2d 1106, 1110 (Wash. Ct. App. 1999).

242. 793 So. 2d 1094 (Fla. Dist. Ct. App. 2001). See also In re BankAmerica, 210
F.R.D. at 705. In re BankAmerica was the only other case involving a claim of media-
tor misconduct where the agreement reached was not enforced. In BankAmerica,
though, the court refused to approve the mediated class action settlement on grounds
of fairness, not because the mediator “strong-armed” counsel. BankAmerica 210
F.R.D. at 705.
243. Vitakis-Valchine v. Valchine, 793 So. 2d 1094, 1096-97 (Fla. Dist. Ct. App.
2001).
244. Id. at 1097.
245. Id. at 1099–1100.
246. Id. at 1098–99 (citing FLA. R. MED. 10.310(b), (c) & 10.370(c)).
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98 Harvard Negotiation Law Review [Vol. 11:43

2. Mediator Ethics and Malpractice—Actions Against the

Mediator

During the five-year period covered by the database, there were

only four cases naming mediators as defendants.247 All four were dis-
missed on the pleadings or by summary judgment in the mediator’s
favor.
In Lehrer v. Zwernemann,248 the plaintiff sued the mediator,
among others, for “negligence or legal malpractice, breach of contract,
breach of fiduciary duty, Texas Deceptive Trade Practices Act viola-
tions, fraud, and conspiracy to commit fraud.” The plaintiff essen-
tially claimed that the mediator did not act as a neutral, had conflicts
of interest, and did not disclose certain facts to the plaintiff.249
Rather than focus on particular duties or standards required of a me-
diator, the court took a functional approach. The court concluded
that the “primary obligation” of a mediator is “to facilitate a settle-
ment,” which the defendant accomplished.250 Summary judgment in
favor of the mediator was affirmed because the plaintiff could cite to
no injury caused by the mediator.251
Two other cases alleged conspiracies between attorneys and
mediators, but did not individually name mediators as defendants.252
These cases were also dismissed by summary judgment.

247. Goad v. Ervin, No. E033593, 2003 WL 22753608 (Cal. Ct. App. Nov. 21, 2003)
(asserting quasi-judicial immunity to preclude suit against mediator for alleged defa-
mation and filing of a false document); Jefferson v. William R. Ridgeway Family
Courthouse, No, CO38059, 2002 WL 819859 (Cal. Ct. App. May 1, 2002) (relying on
statutory litigation privilege to affirm dismissal of claim that alleged that mediator
had falsified mediation investigation report prepared in context of child custody pro-
ceedings); Jewell v. Underwood, No 2000-CA-G1, 2000 WL 1867565, at *4 (Ohio Ct.
App. Dec. 22, 2000) (dismissing claim that mediator committed fraud by falsely repre-
senting that “she was trained as a mediator and . . . could ably provide mediation
services” in family law matter, where mediator’s uncontradicted affidavit stated she
informed the parties’ attorneys that she was not a trained divorce mediator); Lehrer
v. Zwernemann, 14 S.W.3d 775, 777–78 (Tex. App. 2000) (concluding that failure by
mediator to affirmatively disclose relationship with opposing counsel and to inform
party in mediation that his lawyer had failed to conduct discovery could not be basis
for negligence or legal malpractice, breach of contract, breach of fiduciary duty, or
fraud claims, where the complaining party had “constructive knowledge” of the prior
relationship between the mediator and opposing counsel and could not articulate any
damages from alleged improper behavior).
248. Lehrer, 14 S.W.3d at 776.
249. Id. at 777.
250. Id.
251. Id. at 778.
252. Williamwest v. Am. Studios/PCA Int’l., Inc., 827 So. 2d 526 (La. Ct. App.
2002), reh’g denied (Oct. 28, 2002) (finding no evidence to support party’s allegation
that Office of Workers’ Compensation mediator, party’s former attorneys, and the
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Spring 2006] Disputing Irony 99

While actions against mediators sound in negligence, defining

the duty of care of a mediator is quite difficult, absent specific stat-
utes or court rules. In Chang’s Imports, Inc. v. Srader,253 the court
ruled that a mediator should not be held to the same standard of care
expected in the legal profession, even if the mediator is a lawyer. The
court noted that “[t]here is almost no law on what the appropriate
standard of care is, if any, for a mediator who helps negotiate a settle-
ment between parties.”254
Nor is the oft-mentioned threat of unauthorized practice of law
(UPL) prosecution255 materializing in practice. UPL was raised in
only one case in the database—The Florida Bar v. Neiman.256 In
Neiman, the Florida Supreme Court concluded that a paralegal en-
gaged in unauthorized practice of law.257 Among other things, the
paralegal appeared on behalf of a personal injury plaintiff at a media-
tion, conducted settlement discussions with defending insurer’s attor-
ney, appeared on behalf of a plaintiff in a wrongful birth case
mediation, and argued issues of liability, causation, and damages
while the lawyer he worked for sat silent.258

D. The Special Challenges Posed by Hybrid Processes

The intersection between mediation and other ADR processes
presents an array of thorny ethical problems. Courts usually reject
challenges to arbitral awards issued by arbitrators who did not dis-
close related prior service as mediators.259 As a general principle, the
presence of an earlier relationship through mediation is insufficient

trial court itself were parties to a conspiracy against him); Fishof v. Grajower, 691
N.Y.S.2d 507 (N.Y. App. Div. 1999) (reversing trial court and granting husband defen-
dant’s motion for summary judgment against claims of fraud and breach of fiduciary
duty for alleged conspiracy with a mediator to deceive plaintiff into accepting a settle-
ment below that to which she was entitled).
253. 216 F. Supp. 2d 325 (S.D.N.Y. 2002) (granting summary judgment for defen-
dant in claim that attorney/mediator was negligent and had conflicts of interest in
mediating dispute between former client and former acquaintance).
254. Id. at 332.
255. See, e.g., David A. Hoffman & Natasha A. Affolder, A Well-Founded Fear of
Prosecution: Mediation and the Unauthorized Practice of Law, DISP. RESOL. MAG.,
Winter 2000, at 20 and articles cited therein.
256. 816 So. 2d 587 (Fla. 2002).
257. Id. at 599–600.
258. The Florida Bar v. Neiman, 816 So. 2d 587, 589–94 (Fla. 2002).
259. Adams v. Torbarina, No. B15268, 2003 WL 321433 (Cal. Ct. App. Feb. 13,
2003). See also Humphrey v. Mesa Operating Ltd. P’ship, Mesa, Inc., No. 05-97-
00827-CV, 1999 WL 652500 (Tex. Ct. App. Aug. 27, 1999) (affirming trial court re-
fusal to compel discovery answers to questions regarding arbitrator’s prior mediations
with law firm involved in arbitration as irrelevant to issue of possible evident partial-
ity). But cf. Crow Constr. Co. v. Jeffrey M. Brown Assocs. Inc., 264 F. Supp. 2d 217
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100 Harvard Negotiation Law Review [Vol. 11:43

to create a reasonable impression of an arbitrator’s partiality. In-

deed, in the words of one Texas trial court, “[t]he mere payment of a
mediation fee is insufficient to show partiality since both sides pay a
fee. Indeed, mediators often antagonize the parties or force both
sides to leave a mediation unhappy in order to achieve a successful
mediation.”260
What about the arbitrator who later serves as a mediator for one
of the parties in an unrelated case? In Durone v. Cary,261 the Califor-
nia Court of Appeals declined to vacate an arbitral award for alleged
bias, where after deciding liability, the arbitrator accepted a media-
tion position for the prevailing party.
Less frequent, but more troubling, are those cases where a neu-
tral plays both roles in the same case. If, after assuring the parties of
confidentiality for the purposes of encouraging candor, the mediator
turns into a decision-maker, what is the mediator to do with informa-
tion that was extracted through promises of confidentiality? How
does the mediator maintain the promised neutrality? In Bowden v.
Weickert,262 the court found that an arbitrator exceeded his authority
by basing an arbitral award, at least in part, on the parties’ failed
attempt at a mediated settlement. The court reasoned, “[i]t is undis-
puted that the arbitrator relied on information obtained through his
role as mediator when he fashioned the arbitration award,”263 which

(E.D. Pa. 2003) (concluding that an arbitrator’s undisclosed but nearly contemporane-
ous service as a mediator in another case involving a party in the arbitration consti-
tuted sufficient appearance of bias to vacate an arbitral award).
260. Tex. Commerce Bank v. Universal Technical Inst. of Tex., Inc., 985 S.W.2d
678, 681 n.4 (Tex. Ct. App. 1999) (quoting the trial court below which rejected a chal-
lenge to an arbitral award that was based on undisclosed mediation service).
261. Nos. A092829, A093661, 2002 WL 28158 (Cal. Ct. App. Jan. 11, 2002).
262. No. S-02-017, 2003 WL 21419175, at *7 (Ohio App. June 20, 2003). See also
Township of Teaneck v. Teaneck Firemen’s Mut. Benevolent Ass’n Local No. 42, 802
A.2d 569 (N.J. Super. Ct. App. Div. 2002), cert. granted, 812 A.2d 1109 (N.J. 2002),
aff’d, 832 A.2d 315 (N.J. 2003) (accepting withdrawal of interest arbitrator who had
first tried unsuccessfully to mediate case); In re Cartwright, 104 S.W.3d 706, 714
(Tex. Ct. App. 2003) (ruling that the trial court abused its discretion by appointing
mediator of child custody dispute as arbitrator of subsequent property dispute with-
out consent of the parties, noting that “[i]f the mediator is later appointed to be the
arbitrator between the same parties, he or she is likely to be in the possession of
information that either or both of those parties would not have chosen to reveal to an
arbitrator”). But cf. Hallam v. Fallon, No. HO23424, 2003 WL 21143014, at *10 (Cal.
Ct. App. May 16, 2003) (rejecting a challenge to an arbitral award issued by a neutral
who had previously tried to mediate the case where there had been a “gradual trans-
formation from mediation to arbitration” that was recognized by all the parties and,
indeed, initiated by the party challenging the arbitral award, the court confirmed the
award).
263. Bowden v. Weickert, No. S-02-017, 2003 WL 21419175, at *6 (Ohio App. June
20, 2003).
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violated the Ohio mediation confidentiality statute.264 The same con-

cerns about mishandling of confidential information make dual ser-
vice as a mediator and guardian ad litem problematic.265
Nonetheless, it is not uncommon for parties to craft a dual role for
their neutral.266
Some opinions address ethical considerations regarding informa-
tion gathered in one process and used in another. In Kamaunu v.
Kaaea,267 the Hawaii Supreme Court overruled an Intermediate
Court of Appeals order prohibiting trial courts from seeking to dis-
cover during settlement conferences what occurred during the course
of mandatory court-annexed arbitrations, including the specifics of
arbitrators’ awards. According to the Supreme Court, the objective of
resolution through compromise and settlement rather than litigation
is “more readily fulfilled if trial courts—when acting as mediators—
have knowledge of information regarding prior arbitration proceed-
ings or previous settlement attempts.”268 However, such judicial en-
couragement for the sharing of information is the exception, not the
rule.269

264. OHIO REV. CODE ANN. § 2317.023 (“Mediation communications privileged;

exceptions. . . .”).
265. See Isaacson v. Isaacson, 792 A.2d 525 (N.J. Super. Ct. App. Div. 2002) (re-
versing trial court and granting motion to remove the single individual who served as
both guardian ad litem and mediator, concluding that the roles of mediator of eco-
nomic issues and guardian ad litem are not sufficiently distinct to avoid the inherent
conflict between a mediator’s obligation to respect confidences of the parties and the
responsibility as guardian ad litem to serve as an officer of the court). But cf. Holtan
v. Holtan, No. C6-98-1348, 1999 WL 231677 (Minn. Ct. App. Apr. 20, 1999) (denying
husband’s motion to set aside judgment and decree of divorce based on argument that
guardian ad litem improperly assumed a mediator role, thus becoming advocate for
mother).
266. See, e.g., Rodriguez v. Harding, No. 04-02-00093-CV, 2002 WL 31863766
(Tex. App. Dec. 24, 2002) (appointing mediator as arbitrator of any disputes in divorce
mediation); Wallace v. New Teal Run, Ltd., No. 01-99-00085-CU, 2000 WL 351713
(Tex. App. Apr. 6, 2000) (appointing mediator as arbitrator to resolve disputes regard-
ing interpretation or performance of mediated settlement); Sosnick v. Sosnick, 84 Cal.
Rptr. 2d 700 (Cal. Ct. App. 1999) (appointing mediator as special master to determine
proper form of judgment to memorialize mediated settlement).
267. 57 P.3d 428 (Haw. 2002).
268. Id. at 432.
269. See, e.g., In re Anonymous, 283 F.3d 627 (4th Cir. 2002) (disciplining attor-
neys for disclosing information regarding a mediation to an arbitral panel attempting
to resolve attorney and client dispute over litigation expenses); In re Cartwright, 104
S.W.3d 706 (Tex. App. 2003) (holding that trial court abused its discretion by ap-
pointing mediator of child custody dispute as arbitrator of subsequent property dis-
pute without consent of the parties); Bowden v. Weickert, No. S-02-017, 2003 WL
21419175 (Ohio App. June 20, 2003) (concluding that arbitrator exceeded his author-
ity by basing an arbitral award, at least in part, on the parties’ failed attempt at a
mediated settlement).
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102 Harvard Negotiation Law Review [Vol. 11:43

E. Judicial Ethics and Malpractice

The tension of dual roles of mediator and decision-maker also is

at the heart of a number of opinions regarding judicial officers and
mediation. One set of problems is posed when judges initially act as
mediators and later assume adjudicative functions in the same case.
For example, in Zhu v. Countrywide Realty Co., Inc.,270 the Tenth
Circuit Court of Appeals affirmed enforcement of a mediated settle-
ment of Fair Housing Act claims, finding no impropriety in the same
magistrate judge serving as both mediator and later as judge recom-
mending enforcement of the settlement. In rejecting the plaintiff’s
motion to reopen the case and set aside the mediated settlement, the
magistrate revealed settlement negotiations. According to the court,
this did not violate mediation confidentiality rules because the disclo-
sure was necessary to evaluate the plaintiff’s challenge to the settle-
ment agreement.271
Another case where a judge who had served as a mediator was
asked to enforce the mediated settlement agreement is DeMers v.
Lee.272 In DeMers, the Washington Court of Appeals concluded that
the presiding judge had no responsibility to step down to avoid the
appearance of unfairness where the record unequivocally established
that the parties reached agreement on material terms and swore to
the settlement in open court.273 The court ruled that under such cir-
cumstances a judicial order compelling parties to execute settlement
documents is fair.274 Likewise, the Sixth Circuit Court of Appeals in
Renkoph v. REMS, Inc.,275 found no error in a district court judge
ruling on a motion for summary judgment despite having previously
participated in the case as a mediator. In addition to finding no au-
thority for the proposition that judges must always recuse them-
selves after service as a mediator, the court stressed that the
appealing party had consented to the judge’s mediator role and had

270. 66 F.App’x 840 (10th Cir. 2003), cert. denied, 124 S.Ct. 1083 (Jan. 12, 2004)
(finding no impropriety in the same magistrate judge serving as both mediator and
later as judge recommending enforcement of settlement).
271. Id. at 842 (citing Pueblo of San Ildefonso v. Ridlon, 90 F.3d 423, 424 (10th
Cir. 1996) (finding no violation of court confidentiality rules where a party disclosed
mediation communications in response to an order to show cause)). Because of confi-
dentiality concerns, the Tenth Circuit panel ruling in Pueblo of San Ildefonso recused
itself from all future deliberations—exactly what the magistrate did not do in Zhu.
272. No. 44348-8-I, 2000 WL 264022 (Wash. Ct. App. 2000) (enforcing settlement
agreement obtained by judge acting as a mediator).
273. Id. at *2–3.
274. Id. at *3.
275. 40 F.App’x 126 (6th Cir. 2002).
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not sought to recuse the judge at the time of the summary

judgment.276
Assigning the mediating role to one judge and the adjudicative
role to another does not necessarily eliminate all potential problems.
Issues still arise about the boundary between mediation and judicial
management of settlement conferences. In Estate of Skala v.
Skala,277 the Indiana Court of Appeals considered whether a judge
had violated local court ADR rules by mediating. Plaintiffs unsuc-
cessfully asserted that an oral settlement reached at a pre-trial set-
tlement conference was actually a failed mediation subject to ADR
rules. To support their argument, they noted the judge’s words, in-
cluding the statement that “I’m no longer going to be the mediator
here, I’m going to be a judge.” Such statements, ruled the appellate
court, did not prove the judge was mediating in violation of court
rules; rather, the statements show that the judge “simply was at-
tempting, in his role as judge, to assist the parties in reaching a set-
tlement of their disputes.”278
Even in cases where judges were not mediators, their being in-
formed of what transpired in mediation was offered in a number of
cases as a basis for judicial disqualification. Courts usually were not
persuaded by this argument. For example, in Enterprise Leasing Co.
v. Jones,279 the Florida Supreme Court ruled that a judge was not
subject to automatic disqualification from presiding over a personal
injury action to be tried to a jury, merely because the judge was in-
formed by the plaintiff’s counsel of confidential mediation informa-
tion. The information included a demand for settlement and the
highest offer made by the defendants. “We recognize the important
public policy concerns favoring confidential mediation proceedings
and the role of confidentiality in settlement,” noted the court, but
“[w]e can see no compelling reason to treat a trial court’s knowledge
of inadmissible information in the mediation context any differently
from the other situations presented every day where judges are asked
to set aside their personal knowledge and rule based on the evidence
presented by the parties at the trial or hearing.”280

276. Renkoph v. REMS, Inc., 40 F.App’x 126, 130 (6th Cir. 2002).
277. 751 N.E.2d 769 (Ind. Ct. App. 2001).
278. Id. at 772.
279. 789 So. 2d 964 (Fla. 2001). See also Metz v. Metz, 61 P.3d 383 (Wyo. 2003)
(refusing to disqualify trial judge in divorce action after judge had presided over ac-
tion to enforce mediated settlement).
280. Enterprise Leasing Co. v. Jones, 789 So. 2d 964, 967–68 (Fla. 2001).
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104 Harvard Negotiation Law Review [Vol. 11:43

In Panitch v. Panitch,281 the appellate court affirmed the trial

judge’s decision not to recuse himself for use of inappropriate lan-
guage expressing frustration during a conference call with counsel
and asserting in a letter to counsel that plaintiff had failed to utilize
mediation. However, the Panitch opinion closed with cautionary re-
marks about the risks of too much judicial involvement in settlement
efforts and the necessity, under certain circumstances, to step aside
and allow another judge to try the case.282
Alleged judicial impropriety also was at the heart of the issue
considered in Shake v. Ethics Committee of the Kentucky Judici-
ary.283 The Kentucky Supreme Court, in a seven-to-three split deci-
sion, vacated an opinion of the Ethics Committee of the Kentucky
Judiciary and allowed a judge to serve without compensation on the
board of directors of a non-profit local mediation organization.284 The
majority reasoned there was no valid basis for the Ethics Commit-
tee’s fear that litigants may feel compelled to choose mediation if the
judge sits on a mediation organization’s board. After all, explained
the majority, “[a]lthough the decision to choose mediation is fre-
quently made by the litigants, the fact that the judge sits on a media-
tion organization’s board is an insignificant factor in the making of
that decision by litigants when compared to the litigants’ knowledge

281. 770 A.2d 1237 (N.J. Super. Ct. App. Div. 2001).
282. Id. at 1242. The court wrote:
When becoming too intimately involved with discovery and case manage-
ment, which may inevitably lead to settlement discussions, a judge may
reach a point where it may well appear to the clients that one side is being
favored over another. We caution that excessive involvement in proceedings
before trial in cases where that judge will ultimately be the fact finder would
dictate that the judge should step aside and allow another judge to try the
case because of opinions expressed. We are not addressing the usual non-
jury case where a judge must necessarily be involved to some degree, al-
though not completely immersed, in attempting to move a case or encourage
settlement of a case. Settlements, of course, are always desirable from the
standpoint of the litigants as well as the court system. We merely caution,
without deciding now, that it may well be appropriate before this case
reaches trial for the judge to consider whether he should step down from
hearing the actual trial of the case because of the degree of involvement.
See also Davidson v. Lindsey, 104 S.W.3d 483 (Tenn. 2003) (challenging trial judge’s
contact with mediator).
283. 122 S.W.3d 577 (Ky. 2003). See also In re Fine v. Nev. Comm’n on Judicial
Discipline, 13 P.3d 400 (Nev. 2000) (affirming the removal of a judge from office in
part because the judge appointed her first cousin as a mediator in a child custody
matter).
284. Shake v. Ethics Committee of the Kentucky Judiciary, 122 S.W.3d 577, 584
(Ky. 2003).
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Spring 2006] Disputing Irony 105

that the judge has the absolute discretion to order mediation even if
they choose otherwise.”285

V. DUTY TO MEDIATE/CONDITION PRECEDENT

Disputes about parties’ obligations to participate in mediation
are detailed in 279 cases in the database, including 122 opinions
coded as condition precedent cases, where mediation could be consid-
ered a mandatory pre-condition to litigation or arbitration. There
were twenty-one state supreme court decisions and twenty-five fed-
eral circuit court decisions. These types of disputes more than tripled
in frequency between 1999 and 2003, from twenty-one to seventy-
three.
Collectively, the 279 opinions support a simple principle: courts
are inclined to order mediation on their own initiative, and will gen-
erally enforce a pre-existing obligation to participate in mediation,
whether the obligation was judicially created, mandated by statute or
stipulated in the parties’ pre-dispute contract.

A. Judicial Authority
The best overview of judicial authority to compel mediation is
provided by In re Atlantic Pipe Corp.,286 a rare advisory mandamus
order issued by the First Circuit Court of Appeals. The decision ex-
haustively reviews the four sources of court authority to compel medi-
ation: local court rule; applicable statutes; the Federal Rules of Civil
Procedure; and the court’s inherent power.
While squarely affirming the power of courts to compel media-
tion, the decision also questions the wisdom of mandating mediation
against parties’ wishes, noting that “[r]equiring parties to invest sub-
stantial amounts of time and money in mediation under such circum-
stances may well be inefficient.”287 A small number of courts echo
this view and refuse to compel mediation when convinced the process
will be futile. For example, in In re African-American Slave Descend-
ants’ Litigation,288 an Illinois federal district court refused to exercise

285. Shake, 122 S.W.3d at 583–84.

286. In re Atl. Pipe Corp., 304 F.3d 135 (1st Cir. 2002) (holding that a court may
compel mediation pursuant to its inherent authority to manage and control dockets;
but, absent an explicit statutory provision or local rule authorizing mediation, the
court must first determine that a case is appropriate for mediation and then affirma-
tively set appropriate procedural safeguards to ensure fairness to all parties
involved).
287. Id. at 143–44.
288. 272 F. Supp. 2d 755 (N.D. Ill. 2003). See also The Stockbridge-Munsee Cmty
v. Oneida Indian Nation of N.Y., No. 86-CV-1140, 2003 WL 21715863 (N.D.N.Y. July
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106 Harvard Negotiation Law Review [Vol. 11:43

its inherent power to compel mediation of an action for monetary and

injunctive relief brought by descendents of former enslaved African
Americans against various corporate defendants. In the court’s view,
mediation would not facilitate an expeditious end to the litigation be-
cause “[b]oth parties have different views pertaining to the viability
of claims presented” and defendants object to imposition of
mediation.
A distinctly different view of mandatory mediation is expressed
in Liang v. Lai,289 in which the Montana Supreme Court denied an
unopposed motion to dispense with appellate mediation required by
local court rule in all actions seeking monetary damages. In the
court’s view, even though the issue on appeal was a challenge to an
order for change of venue, the determining factor for mediation eligi-
bility was the relief sought in the underlying action and not the type
of order or judgment being appealed. Any other approach, reasoned
the court, would have doomed the appellate mediation program given
initial lawyer hostility.290
Successful challenges to judicially compelled mediation are rare,
if for no other reason than such orders are viewed as interlocutory
and unappealable.291 Courts favor mediation on efficiency
grounds292 and are willing to exercise power to compel the

24, 2003) (denying a request by the tribal nation to refer the dispute to mediation
where the state claimed 11th amendment immunity, making mediation futile in the
court’s view); LLH v. SCH, No. S-10174, 2002 WL 1943659 (Alaska Aug. 21, 2002)
(finding that the trial court did not abuse discretion by modifying the parties’ custody
agreement to delete mandatory mediation provision where record as a whole shows
that parties cannot cooperate to utilize mediation).
289. 78 P.3d 1212 (Mont. 2003).
290. Id. at 1214.
291. See, e.g., Tutu Park, Ltd. v. O’Brien Plumbing Co., 180 F. Supp. 2d 673 (D.
V.I. 2002) (finding interlocutory and unappealable an order of the Territorial Court of
the Virgin Islands compelling parties to mediate while continuing indefinitely a pend-
ing summary judgment motion hearing on arbitrability; moreover, nothing in the
FAA precludes the Territorial Court’s use of extrajudicial mediation proceedings
before resolving the question of arbitrability); In re Thomas H., No. A100644, 2003
WL 21481113 (Cal. Ct. App. June 27, 2003) (refusing to find error in trial court failure
to refer defendant to a victim-offender reconciliation program).
292. See, e.g., In re Enron Corp., No. 03 Civ. 5078(DLC), 2003 WL 22171695
(S.D.N.Y. Sept. 22, 2003) (refusing to withdraw reference of proceedings to bank-
ruptcy court and noting that judicial efficiency, as well as uniform administration of
bankruptcy proceedings, weigh in favor of allowing mediation process in bankruptcy
court to proceed even for claims allegedly subject to arbitration); Lassiter v. Lassiter,
Nos. C-020494, C-020370, C-020128, 2003 WL 21034193 (Ohio App. May 9, 2003) (en-
dorsing requirement to mediate all subsequent motions as a reasonable exercise of
judicial discretion designed to discourage frivolous motions).
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Spring 2006] Disputing Irony 107

attendance of necessary parties.293 Requiring non-party participa-

tion, however, is another matter.294
Judicial power to compel mediation is not unlimited. For exam-
ple, in In re Hough,295 the Iowa Court of Appeals concluded the trial
court exceeded its authority by mandating mediation as a pre-condi-
tion to filing a court action, contravening the relevant state statute
authorizing mandatory mediation only after actions are filed. Fur-
ther, in Connolly v. National School Bus Service, Inc.,296 the Seventh
Circuit Court of Appeals opined that a party has no obligation to me-
diate before a District Court judge’s law clerk, and failure to partici-
pate in such mediation was found to be an impermissible basis for an
attorney fee award reduction. Sometimes the limitation is not on the
referral to mediate but on the extent of power delegated to the media-
tor. For example, in Martin v. Martin,297 the Florida Court of Ap-
peals found that empowering a mediator to establish a visitation
schedule was an improper delegation of judicial authority.
Courts are disinclined to enforce prior mediation orders in the
face of a party who has waived the right to mediate298 or who has

293. See, e.g., United States v. City of Garland, 124 F. Supp. 2d 442 (N.D. Tex.
2000) (concluding that federal magistrate has authority to compel mayor and city
council member to attend court-ordered mediation, and further holding that such at-
tendance was not in violation of Texas Open Meetings Act because mediation is not a
“meeting” as defined by the Act).
294. See, e.g., Marion County Jail Inmates v. Sheriff Anderson, No. IP 72-424-C B/
S, 2003 WL 22425020, at *1 (S.D. Ind. Mar. 19, 2003) (refusing to compel mediation
despite acknowledging that plaintiff’s complaints about prison overcrowding were
problems of “enormous magnitude and grave consequence,” reasoning that “[c]ourts
do not conduct town meetings, to which ‘all interested persons’ are invited to attend,
to resolve public issues; that approach better serves the needs and interests of the
legislative and executive branches.”).
295. 590 N.W.2d 556 (Iowa Ct. App. 1999). See also Ishola v. Ishola, No. C3-99-
1625, 2000 WL 310544, at *1 (Minn. Ct. App. Mar. 28, 2000) (finding that, absent
evidence that the district has a mandatory visitation expediter program, the court is
precluded from “add[ing]” mandatory visitation mediation provisions to a judgment
and decree memorializing the parties’ oral stipulation, where the parties’ agreement
did not address mediation); Mitchell v. Mitchell, No. M2001-01609-COA-R3-CV, 2003
WL 21051742 (Tenn. Ct. App. May 12, 2003) (reversing trial court order compelling
mediation of all motions); Chillari v. Chillari, 583 S.E.2d 367 (N.C. Ct. App. 2003)
(vacating award of custody to wife where husband had not waived mediation required
by statute and trial court failed to justify its failure to compel mediation).
296. 177 F.3d 593 (7th Cir. 1999).
297. 734 So. 2d 1133 (Fla. Dist. Ct. App. 1999).
298. See, e.g., Gleicher v. Gleicher, 756 N.Y.S.2d 624 (N.Y. App. Div. 2003) (af-
firming court award of child support where husband waived any argument concerning
mediation obligation and consented to court jurisdiction).
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108 Harvard Negotiation Law Review [Vol. 11:43

unclean hands.299 Nor are pending court orders to mediate consid-

ered valid defenses to dismissal of an action on independent grounds.
For example, in United States v. Beyrle,300 the Tenth Circuit Court of
Appeals affirmed the trial court conclusion that a magistrate’s pre-
trial order compelling mediation of a foreclosure action could not pre-
vent forced sale of the property at issue where the court decided a
dispositive summary judgment motion in defendant’s favor prior to
the start of mediation. Finally, satisfying a mediation obligation is
no excuse for failing to comply with other procedural
requirements.301

B. Contractual Obligations

Courts routinely enforce contractual obligations to mediate as a

condition precedent to litigation. In Philadelphia Housing Authority
v. Dore & Associates Contracting, Inc.,302 the Federal District Court
of Eastern Pennsylvania granted a defense motion for summary judg-
ment and imposed a stay of court proceedings in a breach of contract
dispute where the plaintiff did not formally request internal appeal,
arbitration, or mediation as required by the contract’s ADR provision.

299. See, e.g., Magann v. Magann, 848 So. 2d 496 (Fla. Dist. Ct. App. 2003) (re-
manding for final judgment despite unfulfilled mediation obligation where party op-
posing judgment had previously refused on numerous occasions to participate in
mediation); Schuller v. Schuller, No. C4-02-1242, 2003 WL 282396 (Minn. Ct. App.
Feb. 11, 2003) (finding that failure of prevailing party to first participate in mediation
as required by the parties’ stipulated judgment and decree is insufficient basis to set
aside custody modification on appeal where record suggested losing party failed to
participate in mediation, unless opposing party paid all of the mediator’s fees con-
trary to the terms of the stipulated mediation agreement).
300. No. 02-3424, 2003 WL 22138999 (10th Cir. Sept. 17, 2003). See also Pines v.
Killingsworth, No. D039976, 2003 WL 22251408 (Cal. Ct. App. Oct. 2, 2003) (finding
no error in granting summary judgment before parties completed previously ordered
mediation).
301. See, e.g., Signature Combs, Inc. v. United States, No. Civ. 98-2968-00-2245,
2003 WL 22071165 (W.D. Tenn. June 18, 2003) (rejecting defendant’s assertion that
an agreement to mediate renders a party exempt from Rule 37 sanctions for failure to
comply with procedural rules); Palmer v. Erlandson, No. C8-99-891, 2000 WL 2621
(Minn. Ct. App. Dec. 27, 1999) (holding that participation in settlement discussions
and court-ordered mediation does not estop defendant from seeking dismissal of a
medical malpractice lawsuit based on plaintiffs’ failure to serve affidavit of expert
identification).
302. 111 F. Supp. 2d 633 (E.D. Pa. 2000). See also Waterman v. Waterman, No.
FA-01-07-26150, 2003 WL 1962782 (Conn. Super. Ct. Apr. 3, 2003) (compelling medi-
ation of post-judgment mutual mistake allegation in dispute over QDRO benefits in
divorce case).
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A stay of proceedings is not the only risk; the courts also have dis-
missed claims, with303 or without prejudice.304
In a dozen cases, courts evaluated whether participating in medi-
ation was a condition precedent to arbitration. Both the First and
Eleventh Federal Circuit Courts of Appeals emphasized that the
FAA’s policy in favor of arbitration does not operate without regard to
the wishes of the contracting parties.305 Where parties agree to con-
ditions precedent before arbitration can take place, and those condi-
tions are not fulfilled, in effect “the arbitration provision has not been
activated and the FAA does not apply.”306 In a nutshell, be careful
what you wish for. If you draft a multi-step dispute resolution clause
requiring mediation before accessing arbitration or litigation, be ad-
vised that courts will likely enforce the mediation obligation.307

C. Statutory Obligations
In addition to private contractual obligations, statutory require-
ments to mediate also resulted in considerable litigation. For exam-
ple, in Rutter v. Carroll’s Foods of the Midwest, Co.,308 the court
found the plaintiff’s failure to either mediate or obtain a statutorily
required mediation release to be an unfulfilled condition precedent to
an Iowa nuisance suit. Emphasizing that the failure did not affect

303. See, e.g., Jones v. Trawick, No. 98-6352, 1999 WL 273969 (10th Cir. May 5,
1999) (affirming dismissal of lawsuit for, among other things, failing to attend or par-
ticipate in court-ordered mediation); Gray and Assocs., LLC v. Ernst & Young LLP,
No. 24-C-02-002963, 2003 WL 23497702 (Md. Cir. Ct. June 11, 2003) (dismissing com-
plaint and ordering compliance with mediation/arbitration provisions of parties’ con-
tract). But cf. Piper v. Shakti, Inc., 856 So. 2d 144 (La. Ct. App. 2003) (remanding to
consider propriety of default judgment entered after failure to attend mediation con-
ference and subsequent hearings).
304. See, e.g., Mortimer v. First Mount Vernon Indus. Loan Assoc., No. Civ. AMD
03-1051, 2003 WL 23305155 (D. Md. May 19, 2003) (dismissing claim without
prejudice for failure to mediate); Tunnell-Spangler & Assocs., Inc. v. Katz, No. 3030
100380, 2003 WL 23168817 (Pa. Com. Pl. Dec. 31, 2003) (dismissing defendant’s mo-
tion to dismiss without prejudice based on unfulfilled obligation to mediate).
305. HIM Portland, LLC v. Devito Builders, Inc., 317 F.3d 41 (1st Cir. 2003) (af-
firming denial of motion to compel arbitration where parties’ contract required a re-
quest for mediation as a condition precedent to arbitration); Kemiron Atl., Inc. v.
Aguakem Int’l, Inc., 290 F.3d 1287 (11th Cir. 2002) (ruling that the parties’ failure to
request mediation, which was condition precedent to arbitration under the parties’
contract, precluded enforcement of the arbitration clause).
306. Kemiron, 290 F.3d at 1291.
307. But cf. Pierce v. Kellogg, Brown & Root, Inc., 245 F. Supp. 2d 1212 (E.D.
Okla. 2003) (compelling arbitration where the dispute resolution program required
mediation only if both parties agreed). See also supra notes 176–81, 196–97 and ac- R
companying text (discussing unconscionability challenges to enforcement of media-
tion/arbitration clauses).
308. 50 F. Supp. 2d 876 (N.D. Iowa 1999).
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110 Harvard Negotiation Law Review [Vol. 11:43

the claimant’s standing or the court’s subject matter jurisdiction, the

court nevertheless warned the plaintiff to cure the defect or risk dis-
missal.309 Courts reached similar conclusions with respect to such
diverse statutory mediation schemes as the Federal Congressional
Accountability Act,310 the Y2K Act,311 the Maine Motor Vehicle
Dealer’s Act,312 and an Oklahoma statute on grandparental visita-
tion rights.313 However, failure to fully comply with statutory media-
tion schemes is not always fatal to one’s case.314

D. Consequences of Non-Participation

Parties must overcome a number of hurdles to obtain relief for

another party’s alleged non-participation in mediation. First, not
everyone has standing to challenge a failure to mediate.315 Second,
ambiguity about the exact nature of the mediation obligation makes

309. Id. at 883. But cf. Beckman v. Kitchen, 599 N.W.2d 699 (Iowa 1999) (conclud-
ing that there had been no rescission of a contract of sale triggering a mandatory
mediation obligation under the Iowa Farm Mediation Statute).
310. Halcomb v. Office of the Senate Sergeant-at-Arms of U.S. Senate, 209 F.
Supp. 2d 175 (D.D.C. 2002) (dismissing without prejudice federal employee’s action
alleging retaliation in violation of the Congressional Accountability Act, after conclud-
ing that the Act’s counseling and mediation requirements are jurisdictional prerequi-
sites to filing a retaliation lawsuit).
311. Preferred M.S.O. of Am.-Austin L.L.C. v. Quadramed Corp., 85 F. Supp. 2d
974 (C.D. Cal. 1999) (compelling participation in ADR, including possibility of media-
tion option, pursuant to Y2K Act as precondition for suit).
312. Darling’s v. Nisson N. Am., Inc., 117 F. Supp. 2d 54 (D. Me. 2000) (finding
that claims stated by a franchisee pursuant to the Motor Vehicle Dealer’s Act were
ripe for judicial review, but nonetheless dismissing case without prejudice where
plaintiff failed to make a written demand for mediation as required by the Act as a
precondition for filing court action).
313. Ingram v. Knippers, 72 P.3d 17 (Okla. 2003) (concluding that district court
improperly denied grandparents’ visitation motion, where statute required that medi-
ation be ordered before court decision).
314. See, e.g., Ocasio v. Froedtert Mem’l Lutheran Hosp., 646 N.W.2d 381 (Wis.
2002) (concluding that filing of medical malpractice lawsuit before expiration of
mandatory mediation period does not require dismissal of the action); Kent Feeds,
Inc. v. Manthei, 646 N.W.2d 87 (Iowa 2002) (finding that mandatory mediation provi-
sion of statute governing farmer-creditor disputes does not prevent creditor from
seeking personal judgment against guarantor where guarantees at issue are not se-
cured by agricultural property as defined by the statute).
315. See, e.g., In re A.J.L and E.M.L., 108 S.W. 3d 414 (Tex. Ct. App. 2003) (af-
firming denial of mediation as moot where court properly determined that moving
party lacked standing to bring action); Tires Inc. of Broward v. Goodyear Tire & Rub-
ber Co., 295 F. Supp. 2d 1349 (S.D. Fla. 2003) (granting defense motion to stay ap-
pointment of mediator where court dismissed most of plaintiff’s case with leave to
amend). See also Hillock v. Wyman, No. Civ.A. CV-01-303, 2003 WL 21212014 (Me.
Super. Ct. May 9, 2003) (finding no actionable breach of contract for failing to mediate
when plaintiff fails to state a claim in the underlying contract dispute).
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courts unwilling to take action.316 Third, sometimes there are good

factual defenses.317
Once the court determines an obligation exists and was flouted,
however, a range of consequences may ensue. First, the failure to
mediate can impact substantive matters in the underlying lawsuit.
For example, in McEntyre v. Edwards,318 the Georgia Court of Ap-
peals concluded that a homeowner’s choice to terminate a contract
rather than enter into mediation as requested by defendant was suffi-
cient evidence that the homeowner committed breach by terminating
the contract. Second, as discussed more thoroughly in Part VII,
sanctions may be granted,319 including attorneys’ fees,320 dismis-
sal,321 and even contempt.322

316. See, e.g., Daugherty v. Dutiel, No. 02CA16, 2003 WL 21419178 (Ohio Ct. App.
June 18, 2003) (reversing dismissal of lawsuit as improper sanction for failure to me-
diate where no firm mediation date had been set); Spickler v. Spickler, No. 01-C0-52,
2003 WL 21518732 (Ohio App. June 30, 2003) (affirming refusal to find mother in
contempt for refusal to mediate as required by separation agreement where terms of
the mediation obligation were ambiguous).
317. See, e.g., Environmental Contractors, LLC v. Moon, 983 P.2d 390 (Mont.
1999) (finding that dismissal of appeal was not warranted where party satisfied ap-
pellate mediation participation requirements by being available by telephone and
having his attorney physically present at the mediation); Nat’l Marketing Ass’n. v.
Broadwing Telecomm. Inc., No. 02-2017-CM, 2003 WL 1608416 (D. Kan. Mar. 26,
2003) (finding that plaintiff’s alleged failure to seek mediation prior to initiating law-
suit was not a basis to dismiss all claims where plaintiff timely mailed mediation
request to defendant’s principal place of business, rather than notice address listed in
parties’ royalty agreement).
318. 583 S.E.2d 889 (Ga. Ct. App. 2003), cert. denied (Oct. 20, 2003).
319. See, e.g., Lucas Automotive Eng’g, Inc. v. Bridgestone/Firestone, Inc., 275
F.3d 762, 769 (9th Cir. 2001) (affirming district court imposition of sanctions for de-
fendant’s failure to attend mediation due to “incapacitating headache,” where defen-
dant failed to notify parties beforehand of his nonappearance). See also Donohow v.
Klebar, No. 02-0656, 2003 WL 147702, *3 (Wis. Ct. App. Jan. 22, 2003), review dis-
missed, 657 N.W.2d 710 (Wis. Feb. 24, 2003) (affirming trial court modification of
custody and quoting from party brief emphasizing that party losing custody was “the
party to refuse to cooperate in mediating issues in controversy”). But cf. In re Bryan,
61 P.3d 641 (Kan. 2003) (noting that whether or not attorney accepted offer to medi-
ate is irrelevant in disciplinary action against attorney).
320. See, e.g., Peoples Mortgage Corp. v. Kansas Bankers Surety Co., 62 F.App’x.
232 (10th Cir. 2003) (affirming award of attorneys’ fees against insurance company
for failure to pay a claim without just cause or excuse, in part for insurer’s unreasona-
ble refusal to participate in mediation at which the parties discussed the basis for the
claim); Segui v. Margrill, 844 So. 2d 820, 821 (Fla. Dist. Ct. App. 2003) (awarding
$1,484 in attorneys’ fees and mediator fees as a sanction for the party not attending
the mediation).
321. See supra notes 305–06, 310. See also Jermar, Inc. v. L.M. Communications R
II of S.C., Inc., No. 98-1279, 1999 WL 381817 (4th Cir. June 11, 1999) (affirming trial
court grant of default judgment based on failure to participate in mediation but re-
manding to consider sanctions).
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VI. FEES AND COSTS

Courts decided mediation-related fee and cost issues in 243 opin-
ions. There were 135 state cases,323 including five state supreme
court decisions.324 Federal Circuit Courts of Appeals rendered
twenty-six decisions, including at least one decision from each cir-
cuit.325 The total number of state fee and cost-related decisions in-
creased from twelve to forty-six, while federal decisions declined from
twenty to seventeen during the five-year period.
Fee and cost issues considered by courts divided more or less into
four categories: mediation participation (76); sanctions, either for
failure to mediate or for other inappropriate acts in mediation (65);
compensation for actions to enforce mediated settlements (44); or
compensation for the case as a whole, whether settled in mediation or
not (54).

A. Allocating the Cost of Mediation Participation

Many of the fee/cost cases simply list mediation expenses with-
out discussion as part of a laundry list of costs that were granted326
or denied.327 In some cases, attorneys’ fees for mediation work were

322. See Himes v. Himes, 833 A.2d 1124 (Pa. Super. Ct. 2003) (affirming criminal
contempt conviction of divorce attorney for his failure to appear on behalf of his client
at a child custody mediation).
323. California, Texas, and Florida accounted for fifty-two percent of all state
court fee and cost cases (38, 21, 12 opinions, respectively), which is nearly twice the
percentage (28%) of the entire database that cases from those states represent.
324. Ayers v. Duo-Fast Corp., 779 So. 2d 210 (Ala. 2000); Fernau v. Rowdon, 42
P.3d 1047 (Alaska 2002); Foxgate Homeowners’ Ass’n, Inc. v. Bramalea California,
Inc., 25 P.3d 1117 (Cal. 2001); Hill v. Metropolitan. Dist. Comm’n, 787 N.E.2d 526
(Mass. 2003); In re Marriage of Moss, 977 P.2d 322 (Mont. 1999).
325. See, e.g., In re Atl. Pipe Corp., 304 F.3d 135 (1st Cir. 2002); Uy, M.D. v. Bronx
Mun. Hosp. Ctr., 182 F.3d 152 (2d Cir. 1999); Spark v. MBNA Corp., 48 F.App’x. 385
(3d Cir. 2002); Brinn v. Tidewater Transp. Dist. Comm’n., 242 F.3d 227 (4th Cir.
2001); Mota v. Univ. of Tex. Health Sci. Ctr., 261 F.3d 512 (5th Cir. 2001); Jaynes v.
Austin, 20 F.App’x. 421 (6th Cir. 2001); Connolly v. Laidlaw Indus., Inc., 233 F.3d 451
(7th Cir. 2000); Brisco-Wade v. Carnahan, 297 F.3d 781 (8th Cir. 2002); Lucas Auto.
Eng’g v. Bridgestone/Firestone, Inc., 275 F.3d 762 (9th Cir. 2001); Jones v. Trawick,
No. 98-6352, 1999 WL 273969 (10th Cir. May 5, 1999); Smalbein ex rel Estate of
Smalbein v. City of Daytona Beach, 353 F.3d 901 (11th Cir. 2003).
326. See, e.g., Dumas v. Tyson Foods, Inc., 139 F. Supp. 2d 1243 (N.D. Ala. 2001)
(approving claim by Title VII plaintiff for mediation expenses); Carrabba v. Randalls
Food Mkts., Inc., 191 F. Supp. 2d 815 (N.D. Tex. 2002) (awarding attorneys $6,904.75
for fees paid to mediators in connection with the two court-ordered mediations in ER-
ISA class action case); Wales v. Jack M. Berry, Inc., 192 F. Supp. 2d 1313 (M.D. Fla.
2001) (awarding $5,746.73 in mediation and arbitration expenses to prevailing party
in Fair Labor Standards Act case).
327. In re Marriage of Ceilley, No. 02-0434, 662 N.W.2d 374, 2003 WL 555607
(Iowa Ct. App. Feb. 28, 2003) (affirming without analysis trial court refusal to award
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awarded but reduced because of a failure to carry the burden to es-

tablish that all requested hours were reasonable.328
Numerous opinions confirm taxation of mediation costs despite
the lack of clear statutory or rule authority to do so. In Stevenett v.
Wal-Mart Stores,329 the Utah Supreme Court opined that an award of
$375 in mediation expenses to the prevailing plaintiff in a personal
injury case was well within the trial court’s discretion to tax costs.
According to Stevenett:
[I]t is good public policy to encourage exploration of alternative
dispute resolution methods by allowing the prevailing party to
recover costs so incurred. Without such a rule, parties may well
be disinclined to seriously explore these avenues, even when or-
dered to do so by the court, as in this case.330
In Reed v. Wally Conard Construction, Inc.,331 the Tennessee
Court of Appeals noted that an award of mediation costs is not au-
thorized under Civil Procedure Rule 54.04(2). The court, nonethe-
less, affirmed a trial court award of mediation expenses using a
generous interpretation of the court’s ADR rules. Specifically, section
7 of Tennessee Supreme Court Rule 31 provided that “[t]he costs of
any alternative dispute resolution proceeding, including the costs of
the services of the Rule 31 dispute resolution neutral, at the neutral’s
request, may be charged as court costs.”332 Because the plaintiff’s
attorney sought recovery of the expense, reasoned the court, he must
have been billed by the neutral.333 According to the court, billing by

wife attorney fees for mediation); Alfonso v. Aufiero, 66 F. Supp. 2d 183 (D. Mass.
1999) (refusing to award fees to prevailing civil rights claims plaintiffs for 6.7 hours of
time spent by counsel on unsuccessful mediation); Earl Anthony Bowling, Inc. v. Cor-
rie Dev. Corp., No. A098024, 2002 WL 31895793 (Cal. Ct. App. Dec. 30, 2002) (af-
firming trial court award of over $300,000 in fees and costs to prevailing plaintiff in
dispute over sale of bowling alley, including denial without explanation of $1,208.33
in mediation fees).
328. See, e.g., Glover v. Heart of Am. Mgmt. Co., No. Civ.A. 98-2125-KHV, 1999
WL 450895 (D. Kan. May 5, 1999) (refusing to award attorneys fees for time spent
faxing, but otherwise supporting notion that meeting with client for preparation in
advance of mediation is compensable); Lintz v. Am. Gen. Fin., Inc., 87 F. Supp. 2d
1161 (D. Kan. 2000) (concluding that time spent in unsuccessful mediation and settle-
ment efforts is compensable, but reducing claim of 34.3 hours to 20.1 hours where
moving party failed to meet burden that all claimed hours were reasonable); Martinez
v. Hodgson, 265 F. Supp. 2d 135 (D. Mass. 2003) (awarding attorney fees to prevailing
party, including mediation costs, except those claimed for preparation done the day
after mediation actually took place).
329. 977 P.2d 508 (Ut. App. 1999).
330. Id. at 516.
331. No. 03A01-9807-CH-00210, 1999 WL 817528 (Tenn. App. Oct. 13, 1999).
332. Id. at *8.
333. Id.
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114 Harvard Negotiation Law Review [Vol. 11:43

the neutral is “tantamount to ‘the neutral’s request’”334 as set forth

in the local rule.
In Frenz v. Quereshi,335 the Oregon Federal District Court con-
firmed that a mediation fee is not a recoverable cost under 28 U.S.C.
§§ 1920 and 1921, the uniform standards Congress intends federal
courts to follow in assessing costs. Nonetheless, the court allowed the
plaintiff to recover the mediation fee based on the standard for recov-
erable litigation expenses under 42 U.S.C. § 1988336—where the crit-
ical question is whether the expense would normally be billed to a
fee-paying client.337 By awarding expenses, the court rejected defen-
dant’s argument that a written mediation agreement required that
the fee “be paid equally by the parties unless otherwise agreed to,”
and the parties did not otherwise agree.338 In other cases, however,
courts have refused to tax mediation expenses where parties had pre-
viously agreed to split fees339 or local court rules promoted fee
splitting.340
The lack of express authority to tax mediation costs resulted in
the denial of fees in a number of cases.341 For example, in Brisco-

334. Id.
335. No. CV-97-1501-ST, 1999 WL 375584 (D. Or. Mar. 11, 1999).
336. 42 USC § 1988 (Proceedings in Vindication of Civil Rights). Section (b) in
relevant part provides that “[i]n any action or proceeding to enforce . . . [civil rights]
. . . the court, in its discretion, may allow the prevailing party, other than the United
States, a reasonable attorneys’ fee as part of the costs, except that in any action
brought against a judicial officer for an act or omission taken in such officer’s judicial
capacity such officer shall not be held liable for any costs, including attorneys’ fees,
unless such action was clearly in excess of such officer’s jurisdiction.”
337. Frenz v. Quereshi, No. CV-97-1501-ST, 1999 WL 375584, at *6 (D. Or. Mar.
11, 1999).
338. Id. at *6.
339. In re Williams, No. C-5-52-237, 2000 WL 1920038, at *6 (Minn. Dist. Ct. Apr.
14, 2000), aff’d in part, rev’d in part, 631 N.W.2d 398 (Minn. Ct. App. 2001) (affirming
that private agreements do not alter the court’s discretion to tax the costs of media-
tion, but refusing to do so where taxation would not be supportive of the mediation
process because it conflicts with the parties’ prior agreement to split costs); J.P.
Sedlak Ass’n. v. Conn. Life & Casualty Ins. Co., No. 3:98 CV-145-DFM, 2000 WL
852331 (D. Conn. Mar. 31, 2000) (reducing fee award by $6,678.69 because prevailing
plaintiff may not seek reimbursement for its share of private mediation where the
parties had previously agreed to bear their own costs).
340. See, e.g., Brown v. Capital Mgmt. Co., No. Civ.A.99C-10-210RRC, 2002 WL
338130 (Del. Super. Ct. Feb. 28, 2002), aff’d, 813 A.2d 1094 (Del. 2003) (disallowing
taxation of costs for mediation in favor of prevailing party where local court rule re-
quires that mediation costs be shared); Serna v. City of San Antonio, No. CIVASA-98-
CV-0161-EP, 1999 WL 33290617 (W.D. Tex. July 20, 1999) (finding that mediation
expenses not recoverable as costs, where the referring order said to split equally).
341. See, e.g., Mota v. Univ. of Tex. Houston Health Sci. Ctr., 261 F.3d 512 (5th
Cir. 2001) (finding that although Title VII supports award of investigation fees as a
reasonable out-of-pocket expense for a prevailing plaintiff, mediation costs do not fall
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Wade v. Carnahan,342 the Eighth Circuit Court of Appeals concluded

that the trial court abused its discretion by ordering prevailing de-
fendants in a prisoner’s rights case to pay mediation costs. Local
court rules precluded prisoner civil rights cases from being referred
to mediation, and there was no express statutory authorization for
taxation of mediation fees in section 1983 litigation. Moreover, the
court emphasized that 28 U.S.C. § 1920 omits mediation from its “ex-
haustive list of what costs may be assessed,”343 and Rule 54(d) of the
Federal Rules of Civil Procedure also fails to explicitly grant author-
ity to tax costs against the prevailing party.
In addition to citing a lack of statutory or rule authority, courts
have declined to award mediation costs based on party conduct344
and by drawing a distinction between private, voluntarily incurred
mediation costs and costs that were incurred because of a court-
order.345

B. Fees as a Sanction for Failure to Mediate or Other

Inappropriate Acts

Attorneys’ fees were awarded as a sanction for a variety of of-

fenses including, failure to attend mediation,346 failure to have

within the limited category of expenses taxable under Title VII). See also McKenzie v.
EAP Mgmt. Corp., No. 98-6062-CIV, 1999 WL 1427707 (S.D. Fla. 1999) (refusing to
tax mediation fees in favor of prevailing defendant in Title VII case because such fees
are not taxable under 28 USC § 1920).
342. 297 F.3d 781 (8th Cir. 2002).
343. Id. at 782.
344. Walker v. Bozeman, 243 F. Supp. 2d 1298 (N.D. Fla. 2003) (refusing to tax a
mediator’s fee against the losing defendant where mediation was part of overall set-
tlement process in which the court concluded defendant obviously tried, but plaintiff
refused (based on the offers of judgment and “from the parties respective positions on
damages at trial”) to settle on reasonable terms).
345. Smith v. Vill. of Ruidoso, 994 P.2d 50 (N.M. Ct. App. 1999) (reversing trial
court award of mediation costs to prevailing plaintiff and suggesting such awards
would be appropriate in private mediation only if the parties had agreed to permit
award of mediator’s fee expense as a cost of litigation). Compare Cabral v. YMCA of
Redlands, No. E028654, 2002 WL 399480 (Cal. Ct. App. Mar. 15, 2002) (affirming
taxation of fees charged by the mediator where substantial evidence suggested plain-
tiff had agreed said fees would be recoverable as costs of suit if mediation failed and
defendants were the prevailing parties at trial).
346. See, e.g., People’s Mortgage Corp. v. Kan. Bankers Surety Co., 62 F.App’x.
232 (10th Cir. 2003) (affirming award of attorneys fees against insurance company for
failure to pay a claim without just cause or excuse, in part for insurer’s unreasonable
refusal to participate in mediation at which the parties discussed the basis for the
claim); Segui v. Margrill, 844 So. 2d 820, 821 (Fla. Dist. Ct. App. 2003) (awarding
$1,484 in attorneys’ fees and mediator fees as a sanction for the party not attending
the mediation.).
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116 Harvard Negotiation Law Review [Vol. 11:43

persons with settlement authority present at the mediation,347

breach of an obligation made in mediation to produce wage state-
ments,348 insertion of new terms in general releases prepared post-
mediation that were not included in the original mediated settle-
ment,349 or filing an unsealed motion to enforce a mediated settle-
ment in violation of the settlement’s confidentiality clause.350
Examples of party conduct that courts declined to sanction
through attorney fee awards included violation of confidentiality pro-
visions in a post-mediation fee dispute,351 unwillingness to settle,352
or failing to participate in mediation with a district court judge’s law
clerk.353 In In re Estate of Caldwell,354 the California Court of Ap-
peals refused to enforce a mediated probate settlement obligating a
party who left the mediation early to pay, from his share of trust as-
sets, all attorneys’ fees incurred by the other beneficiaries of the trust
in dispute.

C. Fees for the Case as a Whole

Participating in mediation, whether it results in a settlement or

not, can have a significant impact on attorneys’ fee awards for the

347. Reliance Nat’l Ins. Co. v. B. Von Paris & Sons, Inc., 153 F. Supp. 2d 808 (D.
Md. 2001).
348. Hughes v. Albertson’s, Inc., 803 So. 2d 1150 (La. Ct. App. 2001).
349. Jaynes v. Austin, 20 F.App’x. 421 (6th Cir. Sept. 25, 2001) (awarding attorney
fees as sanction for attorney adding settlement terms post-mediation).
350. Toon v. Wackenhut Corrections Corp., 250 F.3d 950 (5th Cir. 2001) (reducing
attorney fees provided for by contingency fee agreement).
351. In re Anonymous, 283 F.3d 627 (4th Cir. 2002). See infra notes 396–397 and R
accompanying text.
352. See, e.g., Fini v. Remington Arms Co., No. CIV. A. 97-12-SLR, 1999 WL
825604, at *8 (D. Del. Sept. 24, 1999) (refusing to award sanctions based on “conduct
to which the court was not privy and which probably reflects the conduct seen with
most unsuccessful mediations); In re Marriage of Hodges, Nos. D034701, D036624,
2001 WL 1452210 (Cal. Ct. App. 2001) (reversing $25,000 attorney fee sanction after
finding error in trial court taking of evidence from the mediator as to a party’s willing-
ness to settle).
353. Connolly v. Nat’l Sch. Bus Serv., Inc., 177 F.3d 593 (7th Cir. 1999) (ruling
that a party has no obligation to mediate before District Court Judge’s law clerk and
failure to participate in such mediation was impermissible basis for attorneys’ fee
award reduction).
354. No. B158110, 2003 WL 22022025 (Cal. Ct. App. Aug. 28, 2003) (concluding
that even if there had been evidence of bad faith conduct in mediation—which there
was not—it would not be sufficient to justify awarding all attorneys’ fees and costs
incurred by the other beneficiaries).
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action as a whole. Fee-shifting statutes refer to an award of attor-

neys’ fees for “prevailing parties.”355 Consequently, courts have been
forced to decide, with conflicting results, whether there are “prevail-
ing parties” in cases resolved through mediation. In Quinn v. Ultimo
Enterprises, Ltd.,356 the Federal District Court of Illinois awarded
over $80,000 in attorneys’ fees and costs to the plaintiff in an Ameri-
can with Disabilities Act case resolved in mediation.357 In contrast,
in T.D. v. LaGrange School District No. 102,358 the Seventh Circuit
Court of Appeals concluded that a mediated settlement of an Individ-
uals with Disabilities Education Act claim does not confer “prevailing
party” status on the child who is the subject of the settlement. Ac-
cording to the court, such status only comes when the settlement is
the functional equivalent of a consent decree, which does not occur
when the agreement was not made part of a court order, was not
signed by a judge, and the district court was without enforcement
power over the agreement.359 At least two other federal courts have
reached similar conclusions.360
As part of the court’s inquiry into fee awards, detailed examina-
tion of mediation bargaining history is common.361 For example, in
Cordoba v. Dillard’s, Inc.,362 the Florida Federal District court
awarded a prevailing defendant fees after concluding that its $10,000

355. Americans with Disabilities Act of 1990 (ADA) 42 U.S.C. § 12205 (2000); Indi-
viduals with Disabilities Education Act (Education of the Handicapped Act) (IDEA)
20 U.S.C. § 1415(i)(3)(B) (2000).
356. No. 99-C-7268, 2001 WL 128242 (N.D. Ill. Feb. 9, 2001). See also Lucas v.
White, 63 F. Supp. 2d 1046 (N.D. Cal. 1999) (awarding prevailing plaintiffs attorneys’
fee under the Equal Access to Justice Act in prisoner’s rights case resolved after medi-
ation and direct negotiation).
357. See also Folsom v. Heartland Bank, No. Civ. A 98-2308-GTV, 2000 WL
718345 (D. Kan. May 18, 2000) (awarding attorneys’ fee to prevailing party in media-
tion of Truth-in-Lending Act claims).
358. 349 F.3d 469 (7th Cir. 2003).
359. Id. at 478.
360. Edie F. v. River Falls Sch. Dist., 243 F.3d 329 (7th Cir. 2001) (denying fees
under IDEA); Robinson v. Elida Local Sch. Dist. of Educ., No. 98-3056, 1999 WL
97245 (6th Cir. Feb. 19, 1999) (finding no prevailing party under IDEA based on me-
diated settlement).
361. See, e.g., Uy, M.D. v. Bronx Muni. Hosp. Ctr., 182 F.3d 152, 155 (2d Cir. 1999)
(using details of defendant’s conduct in mediation as basis to reverse trial court disal-
lowance of trial preparation on grounds that plaintiff should have more vigorously
pursued settlement); Messina v. Bell, 581 S.E.2d 80 (N.C. Ct. App. 2003) (affirming
an award of attorneys’ fees to the prevailing plaintiff in part because of the trial
court’s careful review of all settlement proposals made, including mediation offers);
Porterfield v. Goldkuhle, 528 S.E.2d 71 (N.C. Ct. App. 2000) (finding abuse of discre-
tion in judge’s failure to make findings about settlement offers).
362. No. 6:01CV1132ORL19KRS, 2003 WL 21499011 (M.D. Fla. June 12, 2003).
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118 Harvard Negotiation Law Review [Vol. 11:43

mediation settlement offer—a “scant 1.1% of what Plaintiff de-

manded”363—was nominal and did not imply that plaintiff had a le-
gitimate, non-frivolous claim.364
However, as noted supra in Part II, when parties raise a confi-
dentiality objection to such inquiry, courts frequently uphold confi-
dentiality limitations.365 For example, in Greene v. Dillingham
Construction, Inc.,366 the California Court of Appeals ruled that fee-
shifting provisions for refusal to accept reasonable settlement offers
do not apply in confidential mediation sessions.
Nine opinions addressed the propriety of fee awards to prevailing
parties who had failed to mediate in alleged violation of contractual
or statutory obligations to do so as a precondition to litigation or arbi-
tration.367 In most cases, courts awarded fees finding that mediation
did in fact occur368 or that the defendants, as responding parties,
were not subject to the mediation obligation.369 However, in Warren

363. Id. at *6.

364. Id.
365. See supra notes 61–81 and accompanying text. R
366. 101 Cal. App. 4th 418, 425 (Cal. Ct. App. 2002) (ruling that disclosure of me-
diation offers would violate confidentiality legislation and frustrate public policy
favoring settlement). See also Nwachukwu v. Jackson, 50 F. Supp. 2d 18 (D.D.C.
1999) (refusing to calculate a fee award based on the court’s perception of reasonable-
ness of the parties’ mediated settlement proposals). In its ruling, the court made one
of the strongest pronouncements in favor of confidentiality to be found in our five-year
database: “It would be hard to imagine a procedure better designed to destroy the
motivation parties have to engage in the mediation process than to have a judicial
officer determine how reasonable or unreasonable they were during their mediation
and predicate a decision on that determination.” Id. at 20.
367. See, e.g., Leamon v. Krajkiewcz, 107 Cal. App. 4th 424 (Cal. Ct. App. 2003), as
supplemented on denial of reh’g (Mar. 25, 2003), review denied (May 14, 2003) (af-
firming denial of fees to prevailing party who failed to first request mediation as re-
quired by the California standard form residential purchase agreement); Brinn v.
Tidewater Transp. Dist. Comm’n., 242 F.3d 227 (4th Cir. 2001) (party waived objec-
tion to fee award for alleged failure of prevailing party to mediate before filing com-
plaint by not raising the defense in its answer or in a pre-trial motion).
368. See, e.g., Bay Area Luxury Homes/Stevick I, LLC v. Lee, No. A098667, 2003
WL 22664648 (Cal. Ct. App. Nov. 12, 2003) (affirming award of fees after concluding
respondent did appear for two mediations by having her husband present with writ-
ten authorization and by being available by telephone); Seven Oaks Homeowners
Ass’n. v. Abureyaleh, No. F040970, 2003 WL 22112008 (Cal. Ct. App. Sept. 4, 2003)
(affirming award of fees to prevailing respondent in real estate matter where respon-
dent did not reject mediation but instead proposed use of a different mediator).
369. See, e.g., Bain v. McKernan, No. Bl48769, 2002 WL 462733 (Cal. Ct. App.
Mar. 27, 2002) (finding that plaintiff’s unilateral decision to file a lawsuit without
first seeking mediation does not sever defendant’s contractual right to recover attor-
neys’ fees as a prevailing party); Dickinson v. Lejins, No. D038748, 2002 WL
31174238 (Cal. Ct. App. Oct. 1, 2002) (rejecting argument that the pre-litigation medi-
ation obligation must be mutual to be enforceable).
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v. Sharabi,370 the court affirmed a denial of fees based on the trial

court determination that the plaintiff’s demand letter to initiate me-
diation was not a genuine attempt to mediate the dispute as required
by the parties’ contract, but instead a tactical litigation threat.
Finally, it is worth noting that the hefty volume of enforcement
litigation discussed previously was not generated by pro bono attor-
neys. As a result, more than forty opinions addressed whether to
award attorneys’ fees for actions to enforce mediated settlements.371

VII. SANCTIONS
Mediation participants sought sanctions for the adverse party’s
or counsel’s conduct during mediation in 117 opinions. Courts im-
posed sanctions in nearly one-half of those cases (53). The litigation
over sanctions was spread evenly among the different types of cases.
Parties sought sanctions in thirty-one contract/commercial cases,
twenty-nine personal injury cases, twenty-three family law cases and
fifteen employment cases. Of the successful sanctions cases, thirteen
were commercial/contract cases, eight employment, thirteen personal
injury and only eight family law cases. The number of cases raising
sanctions issues has more than doubled over the five-year period
from thirteen in 1999 to twenty-nine opinions in 2003 but seems to
have leveled off over the last three years of the database. In the five-
year period, 2001 was the high point with thirty-two cases, but in
2002 the number dropped to twenty-one cases.

A. Sanctions and the Duty to Mediate

The claim for sanctions was combined with a claim involving a
duty to mediate in sixty-six opinions.372 The typical issues involved
some combination of no one appearing at the mediation, or the correct

370. No. A-03596, 2002 WL 343452 (Cal. App. Mar. 6., 2002).
371. See, e.g., Ghahramani v. Guzman, 768 So. 2d 535 (Fla. Dist. Ct. App. 2000)
(reversing trial court and awarding fees to prevailing party in enforcement action
based on prevailing party fee provision contained in the parties’ original contract);
Nazimuddin v. Woodlane Forest Civic Ass’n., Inc., No. 09-00-210 CV, 2001 WL 62899
(Tex. App. Jan. 25, 2001) (affirming award of $13,106.75 in attorneys’ fees for success-
ful enforcement action); Lazy Flamingo U.S.A., Inc. v. Greenfield, 834 So. 2d 413 (Fla.
Dist. Ct. App. 2003) (affirming denial of enforcement fees where the mediated settle-
ment contained no provision for such fees, but remanding to determine propriety of
fee award under court rule authorizing sanctions, including attorneys’ fees, against a
party who fails to perform under a court-ordered mediation settlement agreement).
372. See, e.g., Lucas Automotive Eng’g, Inc. v. Bridgestone/Firestone, Inc., 275
F.3d 762, 769 (9th Cir. 2001) (affirming district court imposition of sanctions for de-
fendant’s failure to attend mediation due to “incapacitating headache,” where defen-
dant failed to notify parties beforehand of his nonappearance); Tex. Parks and
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120 Harvard Negotiation Law Review [Vol. 11:43

party not appearing at the mediation. For example, in Segui v. Mar-

grill,373 the party sent his attorney to the mediation with “full settle-
ment” authority and was available by telephone during the
mediation. Nonetheless, the court granted sanctions, holding that
the court’s order required the presence of the parties.374
Occasionally, a party who showed up at the mediation was sanc-
tioned for mediating in bad faith.375 In Ferrero v. Henderson,376 the
court granted the plaintiff’s unopposed sanction motion in an EEO
dispute. The plaintiff represented that the defendant acted in bad
faith when, at the mediation, the plaintiff was informed that the de-
fendant would refuse to make any offer of settlement.377

Wildlife Dep’t v. Davis, 988 S.W.2d 370 (Tex. App. 1999) (rejecting trial court mone-
tary sanctions against Department for alleged failure to negotiate in good faith in
court-ordered mediation, noting that while Department filed an objection to the medi-
ation referral (which the trial court overruled), it did attend the mediation and even
made an offer of settlement); Columbus Antiques & Decorative Ctr., Inc., v. Waste
Mgmt, Inc., No. B161399, 2003 WL 21757895, at *2 (Cal. Ct. App. July 31, 2003)
(assessing sanctions in part for failure to attend a mediation).
373. 844 So. 2d 820, 821 (Fla. Dist. Ct. App. 2003) (awarding attorneys’ fees and
mediators’ fees as a sanction for the party not attending the mediation).
374. Id. See also Reliance Nat’l Ins. Co. v. B. Von Paris & Sons, Inc., 153 F. Supp.
2d 808, 809–10 (D. Md. 2001) (awarding sanctions for not sending a principal with
settlement authority to the mediation).
375. For extended discussion of the bad faith issue, see generally John Lande, Us-
ing Dispute System Design Methods to Promote Good Faith Participation in Court-
Connected Mediation Programs, 50 UCLA L. REV. 69 (2002) (suggesting procedural
requirements to assure a fair process). See also Maureen A. Weston, Check on Partici-
pant Conduct in Compulsory ADR: Reconciling the Tension in the Need for Good-Faith
Participation, Autonomy, and Confidentiality, 76 IND. L.J. 591, 594 (2001) (arguing
for a good faith standard); James J. Alfini, Settlement Ethics and Lawyering in ADR
Proceedings: A Proposal to Revise Rule 4.1, 19 N. ILL. U. L. REV. 255, 256 (1999) (argu-
ing for an ethical rule precluding lawyers from making or relying on false statements
in negotiations); Kimberlee K. Kovach, Good Faith in Mediation—Requested, Recom-
mended, or Required? A New Ethic, 38 S. TEX. L. REV. 575, 620 (1977) (arguing for a
good faith standard).
376. No. C-3-00-462, 2003 WL 21796381, at *5–6 (S.D. Ohio) (granting mediation
sanctions for mediating in bad faith). But cf. Stoehr v. Yost, 765 N.E.2d 684 (Ind.
App. 2002) (affirming trial court determination that insurer did not act in bad faith
simply by failing to tell plaintiff in advance of mediation that insurer would not offer
money to settle the claim).
377. Ferrero v. Henderson, No. C-3-00-462, 2003 WL 21796381, at *5–6 (S.D.
Ohio).
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Usually the sanctions included a small fine,378 attorneys’ fees,379

or costs incurred by the adverse party.380 Sometimes, courts were
more creative in their sanctions, ordering:
• an apology in addition to attorneys fees and mediation fees;381
• five extra days of visitation for failure to attend mediation;382
• requiring an attorney to read standards of professional con-
duct;383 or
• criminal contempt.384
If the mediation violation was combined with other discovery vio-
lations, courts ordered even stronger sanctions, including dismissal.
For example, in Apostolis v. City of Seattle,385 the court dismissed
most of the allegations in a complaint for unfair labor practices as a
sanction for the deliberate disregard of case scheduling requirements
that included mediation.386 Dismissal of the lawsuit is an extreme

378. See Nick v. Morgan’s Food, Inc., 270 F.3d 590, 594–95 (8th Cir. 2001) (holding
that Fed. R. Civ. P. 16 authorizes fines as a sanction for failing to send a corporate
representative with settlement authority to the mediation).
379. See supra notes 348–56 and accompanying text. See also Tavares v. Tavares, R
No. CO41169, 2003 WL 122599, at *1 (Cal. Ct. App. Jan. 10, 2003) (awarding $500
attorneys’ fees as sanction); Nazimuddin v. Woodlane Forest Civic Ass’n Inc., No. 09-
00-210, 2001 WL 62899 (Tex. App. Jan. 25, 2001) (awarding attorneys’ fees for costs
incurred to enforce mediated settlement agreement).
380. Mitchell v. Kreitman, No. B-156715, 2002 WL 31525395 (Cal. Ct. App. Nov.
14, 2002) (awarding $3,500 for cost of mediator, $2,000 for attorneys’ fees and $1,750
for attorneys fees incurred in bringing the enforcement/sanctions motion).
381. Guevara v. Sahoo, No. 05-00-01086-CV, 2001 WL 700517 (Tex. App. June 22,
2001) (ordering apology in addition to attorneys’ fees and mediation fees for attorney’s
note that constituted “egregious conduct”).
382. Johnson v. Webb, 740 N.Y.S.2d 892 (N.Y. App. Div. 2002) (granting five extra
days of visitation as a remedy for the failure to attend mediation sessions in a family
law matter).
383. Zdravkovic v. United States, No. 01-C-5893, 2002 WL 31744668, at *4 (E.D.
Ill. Dec. 9, 2002) (ordering the lawyer to read the Standards for Professional Conduct
Within the Seventh Federal Judicial Circuit and warning that that future misconduct
might be referred for disciplinary proceedings).
384. Himes v. Himes, 833 A.2d 1124 (Pa. Super. Ct. 2003) (affirming a divorce
attorney’s criminal contempt conviction for failure to appear on behalf of his client at
a child custody mediation).
385. 3 P.3d. 198, 203 (Wash. Ct. App. 2000) (affirming trial court sanction of dis-
missal for failure to prosecute).
386. See also Hopkins v. Harrell, 574 S.E.2d 747, 750 (S.C. Ct. App. 2003) (dis-
missing action because plaintiff failed to attend mediation); Ptacek v. Minn. Fire and
Casualty Co., No. 01-2864, 2002 WL 523802, at *3 (Wis. Ct. App. Apr. 9, 2002) (dis-
missing plaintiff’s claim for failure to prosecute including, among other matters, fail-
ure to get an order to mediate); Newton v. Nicholson, No. COA01-300, 2002 WL
372490, at *2–3 (N.C. Ct. App. Mar. 5, 2002) (dismissing plaintiff’s complaint for dis-
covery violations and failure to attend the mediation); C.A. Walker, Inc. v. D. H. Ma-
sonry, No. 14-00-01174-CV, 2000 WL 1827561 (Tex. App. Dec. 14, 2000) (dismissing
for failure to comply with order to name acceptable mediators).
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122 Harvard Negotiation Law Review [Vol. 11:43

remedy and is justified only as a last resort. In Smith v. Fairfax Vil-

lage Condominium VIII Board of Directors,387 the trial judge dis-
missed the plaintiff’s claim for not complying with court ordered
discovery, including failing to participate in ordered mediation.388
Because the trial judge did not properly take into account sanctions
less severe than dismissal, the District of Columbia Court of Appeals
vacated the judgment and remanded the matter back to the trial
judge.389

B. Sanctions for Breach of Confidentiality

In several cases, the motion for sanctions was based on a claim

that the adverse party breached confidentiality requirements. For
example, in Concerned Citizens of Belle Haven v. Belle Haven
Club,390 the plaintiff sought sanctions when the defendant published
in its newsletter that it was willing to accept the solution proposed by
the mediator, but that the plaintiff would not agree.391 The disclo-
sure was in apparent violation of the confidentiality agreement which
provided in part, “[a]ll statements made or documents submitted for
a session are confidential and ‘for settlement purposes only.’”392
Nonetheless, the court denied the motion for sanctions, stating sim-
ply that “sanctions are not warranted on these facts.”393 The Court of
Appeals for the Fourth Circuit also refused to grant sanctions for vio-
lation of mediation confidentiality rules in In re Anonymous.394
There, counsel and client disclosed protected mediation communica-
tions in connection with resolution of a dispute over litigation ex-
penses in a Title VII action. The court reasoned that the disclosures
were not made in bad faith or with malice, did not have an adverse
impact on the dispute, and were made in a non-public forum.395

387. 775 A.2d 1085 (D.C. Ct. App. 2001).

388. Id. at 1089.
389. Id. at 1095–96. See also In re Hood, 113 S.W.3d 525, 529 (Tex. App. 2003)
(striking pleadings for non-compliance with pre-trial requirements including failure
to attend mediation was too severe in child custody proceeding); Smith v. Smith, 75
S.W.3d 815 (Mo. Ct. App. 2002) (reversing change of custody order concluding it was
not justified by failure to attend mediation); Daugherty v. Dutiel, No. 02CA16, 2003
WL 21419178 (Ohio Ct. App. June 18, 2003) (reversing dismissal of lawsuit as im-
proper sanction for failure to mediate where no firm mediation date had been set).
390. No. Civ. 3:99CV1467, 2002 WL 32124959, at *5 (D. Conn. Oct. 25, 2002).
391. Id. at *5.
392. Id.
393. Id. at *6.
394. 283 F.3d 627 (4th Cir. 2002).
395. Id. at 636.
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Spring 2006] Disputing Irony 123

It appears that courts are reluctant to impose sanctions for vio-

lating mediation confidentiality requirements.396 Warnings about
future sanctions or admonishment for improper behavior seem to be
the extent of the courts’ willingness to impose sanctions397 absent
some finding of bad faith.398 In Toon v. Wackenhut Corrections Cor-
poration,399 the court did find that counsel acted in bad faith in filing
an unsealed motion to enforce a mediated settlement agreement
breaching the confidentiality clause in the settlement agreement. As
a sanction, the court assessed a fine of $15,000, reduced attorneys’
fees, and prohibited counsel from representing other plaintiffs
against defendant absent court approval.400 In Tokerud v. Pacific
Gas & Electric Co.,401 the court concluded that the issue of precluding
expert testimony as a sanction for violating mediation confidentiality
was moot, but that the trial judge should assess monetary sanctions
for the violation.402

VIII. THE MEDIATION-ARBITRATION CONNECTION

Increasingly, mediation and arbitration are linked through pre-
dispute contract clauses obligating parties to participate in multi-
step dispute resolution programs. This contractual intersection, as
well as a number of problems relating to ad hoc uses of mediation and
arbitration, resulted in courts rendering decisions in eighty-eight
opinions during the period covered by the database. This includes
fifty-four state court opinions, seven from state supreme courts,403

396. See, e.g., In re Marriage of Van Horn, No. HO24181, 2003 WL 21802273, at *1
(Cal. Ct. App. Aug. 6, 2003) (refusing to grant sanctions for attorneys’ fees for issuing
subpoena on mediator in violation of contract and Cal. Evid. Code 1119 and 1121);
Yacht Club Southeastern, Inc. v. Sunset Harbour N. Condo. Ass’n, Inc., 843 So. 2d
917, 918 (Fla. Dist. Ct. App. 2003) (sending a letter to association members was not a
violation of mediation confidentiality warranting sanctions, but a communication
among the real parties at interest in the lawsuit); Massey v. Beagle, 754 So. 2d 146,
146 (Fla. Dist. Ct. App. 2000) (affirming without comment a trial judge’s decision not
to sanction a party for an alleged breach of mediation confidentiality).
397. See, e.g., Lyons v. Booker, 982 P.2d 1142, 1143 (Utah Ct. App. 1999) (admon-
ishing counsel and warning about more serious sanctions for repeat violation of medi-
ation confidentiality requirements).
398. See, e.g., Lawson v. Brown’s Day Care Ctr., Inc., 776 A.2d 390, 394 (Vt. 2001)
(holding that, absent a finding of bad faith, it was improper to sanction attorney for
violation of mediation confidentiality).
399. 250 F.3d 950 (5th Cir. 2001).
400. Id. at 954.
401. 25 F.App’x. 584 (9th Cir. 2001).
402. Id.
403. Commercial Union Ins. Co. v. Me. Employers Mut. Ins. Co., 794 A.2d 77 (Me.
2002); Ex parte Mountain Heating & Cooling, Inc., 867 So. 2d 1112 (Ala. 2003); Homes
of Legend, Inc. v. McCollough, 776 So. 2d 741 (Ala. 2000); Kamaunu v. Kaaea, 57 P.3d
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124 Harvard Negotiation Law Review [Vol. 11:43

and thirty-four federal opinions, including eight circuit court

decisions.404
Most opinions fell into one of three categories: ethics issues dis-
cussed previously;405 disputes about the enforcement of pre-dispute
mediation/arbitration clauses;406 and waiver of the right to arbitrate
through mediation participation.407 Outside of these main catego-
ries, there were a handful of miscellaneous disputes, including:
• the consequences of an arbitrator’s failure to order
mediation;408
• whether a mediated settlement terminated the obligation to
arbitrate;409
• the authority of a court to compel mediation while continuing
indefinitely a summary judgment decision on arbitrability;410

428 (Haw. 2002); Karl Storz Endoscopy-Am., Inc. v. Integrated Med. Sys., Inc., 808 So.
2d 999 (Ala. 2001); Lee v. YES of Russellville, Inc., 784 So. 2d 1022 (Ala. 2000); Stew-
art v. Covill and Besham Constr., LLC, No. 03-003, 2003 WL 22001180 (Mont. Aug.
25, 2003).
404. Bombardier Corp. v. Nat’l R.R. Passenger Corp., 333 F.3d 250 (D.C. Cir.
2003); Him Portland, LLC v. DeVito Builders, Inc., 317 F.3d 41 (3rd Cir. 2003); Taylor
v. Prudential Ins. Co. of Am., 91 F.App’x 746 (3d Cir. 2003); In re Anonymous, 283
F.3d 627 (4th Cir. 2002); Inlandboatmans Union of the Pac. v. Dutra Group, 279 F.3d
1075 (9th Cir. 2002); Kemiron Atlantic, Inc. v. Aguakem Int’l., Inc., 290 F.3d 1287
(11th Cir. 2002); Labor/Cmty. Strategy Center v. L.A. County Metro. Transp. Auth.,
263 F.3d 1041 (9th Cir. 2001); Mirra Co., Inc. v. Sch. Admin. Dist. No. 35, 251 F.3d
301 (1st Cir. 2001).
405. See supra notes 210–28, 247–58, 270–85 and accompanying text. R
406. See infra notes 413–23 and accompanying text. R
407. See infra notes 424–26 and accompanying text. R
408. Peisner v. Paypoint Elec. Payment Sys., Inc., No. B157559, 2002 WL
31720292 (Cal. Ct. App. Dec. 4, 2002) (finding the arbitrator’s failure to compel medi-
ation pursuant to a multi-step dispute resolution clause was not a basis to vacate an
arbitral award, because even if the arbitrator had the power to order mediation, fail-
ure to do so amounted to an error of law or fact).
409. PrimeVision Health, Inc. v. Indiana Eye Clinic, No. IP00-0096-C-B/S, 2000
WL 977397 (S.D. Ind. July 13, 2000) (ruling that a dispute over an alleged mediated
settlement which purported to terminate a prior contract containing an arbitration
clause is subject to arbitration).
410. Tutu Park, Ltd. v. O’Brien Plumbing Co., Inc., 180 F. Supp. 2d 673 (D. V.I.
2002) (ruling that the order of the Territorial Court of the Virgin Islands compelling
parties to mediate while continuing indefinitely a pending summary judgment motion
hearing on arbitrability is interlocutory and unappealable; moreover, nothing in the
FAA precludes the Territorial Court’s use of extrajudicial mediation proceedings
before resolving the question of arbitrability).
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• court authority to compel mediation even for claims unequivo-

cally subject to arbitration;411 and
• arbitrator authority to ignore fee-shifting provisions designed
to punish parties who fail to invoke mediation.412

A. Enforcing Pre-Dispute Mediation/Arbitration Clauses

The most common mediation/arbitration dispute, found in

twenty-nine opinions, involved whether to enforce a pre-dispute arbi-
tration clause containing a mediation obligation. Few of these cases
presented novel mediation issues; rather, a mediation obligation was
simply part of a pre-dispute clause under challenge.413
However, in Garrett v. Hooters-Toledo,414 the terms of the media-
tion clause were at the heart of the prevailing argument that the pre-
dispute clause was unenforceable because it was unconscionable.
The clause mandated that an employee had only ten days to request
mediation, that failure to request mediation foreclosed the claim, and
mediation was required in Kentucky, not in Ohio where the employee
worked. Collectively, in the court’s view, these restrictive mediation
requirements were written precisely to discourage potential claim-
ants from pursuing their claims and improperly imposed “burdens
and barriers that would routinely deter former employees from vindi-
cating their rights.”415
Perhaps less intentional, but no less costly, were the failures of
pre-dispute clause drafters to unambiguously define the ADR process

411. In re Enron Corp., No. 03 Civ. 5078(DLC), 2003 WL 22171695 (S.D.N.Y. Sept.
22, 2003) (refusing to withdraw reference of proceedings to bankruptcy court and not-
ing that judicial efficiency, as well as uniform administration of bankruptcy proceed-
ings, weigh in favor of allowing mediation process in bankruptcy court to proceed even
for claims allegedly subject to arbitration).
412. Kahn v. Chetcuti, 123 Cal. Rptr. 2d 606 (Cal. Ct. App. 2002) (holding that the
arbitrator acted within his authority by determining that the prevailing party’s act of
filing a complaint before an obligatory mediation did not bar an award of attorneys’
fees to that party pursuant to a contract clause limiting said fees “should the prevail-
ing party attempt an arbitration or court action before attempting [to] mediate”).
413. See, e.g., Fe-Ri Constr., Inc. v. Intelligroup, Inc., 218 F. Supp. 2d 168 (D.P.R.
2002) (dismissing lawsuit without prejudice to allow satisfaction of contractually re-
quired ADR, including option to elect either mediation or arbitration); Gutman v.
Baldwin Corp., No. Civ.A. 02-CV 7971, 2002 WL 32107938 (E.D. Pa. Nov. 22, 2002)
(noting with approval that employee has right to attorney during mandatory media-
tion phase); In re Orkin Exterminating Co., Inc., No. 01-00-00730-CV, 2000 WL
1752900 (Tex. App. Nov. 30, 2000) (granting writ of mandamus to enforce pre-dispute
clause which mandated four hours of mediation before being able to resort to binding
arbitration).
414. 295 F. Supp. 2d 774 (N.D. Ohio 2003).
415. Id. at 783.
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126 Harvard Negotiation Law Review [Vol. 11:43

in the contract. For example, in Ex parte Mountain Heating & Cool-

ing, Inc.,416 the court refused to compel arbitration of a dispute be-
tween contractors where the arbitration provision memorialized the
parties’ intent to “settle the dispute by arbitration under the Con-
struction Industry Mediation Rules of the American Arbitration As-
sociation.”417 In Forte v. Ameriplan Corp.,418 an agreement
specifically provided for mediation followed by court adjudication, but
also incorporated by reference an employee manual that made dis-
putes subject to arbitration. The resulting ambiguity resulted in a
remand to determine the parties’ intent.
In other cases, the combination of the word “mediation” with
terms like “binding” and “mandatory” led courts to conclude that par-
ties intended to arbitrate their disputes.419 Likewise, in Labor/Com-
munity Strategy Center v. L.A. County Metropolitan Transportation
Authority,420 the Ninth Circuit Court of Appeals declared that a con-
sent decree authorizing a court-appointed special master to “resolve”
disputes empowered the special master to act as a decision-maker, as
well as a mediator.421 However, in Team Design v. Gottlieb,422 the
Tennessee Court of Appeals reversed a trial court that had offered
parties the opportunity to participate in “binding mediation,” then re-
ferred the case to itself, and entered an order fully adjudicating all
claims. According to the appellate court, there simply was insuffi-
cient evidence that the parties knowingly waived their “right to a
trial should the outcome of the mediation prove unsatisfactory.”423

416. 867 So. 2d 1112 (Ala. 2003).

417. Id. at 1116 (emphasis in original).
418. No. 05-01-00921-CV, 2002 WL 576608 (Tex. App. Apr. 18, 2002).
419. High Valley Homes, Inc. v. Fudge, No. 03-01-00726-CV, 2003 WL 1882261
(Tex. App. Apr. 17, 2003); Old Dock Street Brewery, L.L.C. v. DS Holding I, Inc., No.
Civ. A. 01-1937, 2001 WL 873022 (E.D. Pa. June 21, 2001). But cf. Oliver Design
Group v. Westside Deutscher Frauen-Verein, No. 81120, 2002 WL 31839158, *2 (Ohio
App. Dec. 19, 2002) (reversing trial court and refusing to stay action pending arbitra-
tion because agreement for “binding mediation” does not equal arbitration).
420. 263 F.3d 1041 (9th Cir. 2001).
421. Id. at 1050.
422. 104 S.W.3d 512, 526 (Tenn. Ct. App. 2002) (“[W]hile the courts may require or
compel the litigants to sit down and talk with each other, they cannot force them to
resolve their differences using alternative dispute resolution in lieu of their judicial
remedies.”).
423. Id. at 526, 529.
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B. Waiver of Right to Arbitrate Through Mediation Participation

Six opinions evaluated whether participation in, or preparation

for, mediation constituted a waiver of the right/obligation to arbi-
trate. In Stewart v. Covill & Brasham Constuction, LLC,424 the Mon-
tana Supreme Court affirmed a motion by a building contractor to
compel arbitration against a homeowner despite a contention that
the contractor’s request for, and participation in, mediation consti-
tuted a waiver of the right to arbitrate. The letter proposing media-
tion expressly stated that if mediation was unsuccessful the parties
would “go forward with contested binding arbitration as required by
the Contract.”425 In contrast, the court found a party waived its right
to arbitrate in Snelling & Snelling, Inc. v. Reynolds426 where the
party waited over a year to move to compel arbitration and partici-
pated in discovery and court-ordered mediation in the interim.

IX. MISCELLANEOUS ISSUES

One-hundred opinions (sixty-three state; thirty-seven federal)

were coded as “miscellaneous” because they did not fit within our des-
ignated mediated issue categories. Included in this group were nine
state supreme court decisions427 and seven federal circuit
decisions.428

424. 75 P.3d 1276 (Mont. 2003). See also Karl Storz Endoscopy-Am., Inc. v. Inte-
grated Med. Sys., Inc., 808 So. 2d 999 (Ala. 2001) (concluded that a distributor did not
waive its right to compel arbitration by waiting for the opposing party to satisfy rea-
sonable conditions prior to contractually required mediation, which was a condition
precedent to the right to arbitrate under the parties’ agreement).
425. Stewart v. Covill & Brasham Constr., LLC, 75 P.3d 1276, 1277 (Mont. 2003).
426. 140 F. Supp. 2d 1314 (M.D. Fla. 2001). But cf. DeGroff v. MascoTech Forming
Techs.-Fort Wayne, Inc., 179 F. Supp. 2d 896 (N.D. Ind. 2001) (enforcing an arbitra-
tion obligation and rejecting the argument that the employer waived its right to en-
force arbitration by participating in EEOC conciliation efforts instead of initiating
mediation as a required pre-condition to arbitration).
427. Campbell v. Burton, 750 N.E.2d 539 (Ohio 2001); Dan Nelson Constr., Inc. v.
Nodland & Dickson, 608 N.W.2d 267 (N.D. 2000); Davis v. Horton, 661 N.W.2d 533
(Iowa 2003); Gamble v. Dollar Gen. Corp., 852 So. 2d 5 (Miss. 2003); Landis v. Physi-
cians Ins., Co., 628 N.W.2d 893 (Wis. 2001); Liberty Mut. Ins. Co. v. Wheelwright, 851
So. 2d 466 (Ala. 2002); Martin v. Howard, 784 A.2d 291 (R.I. 2001); McDole v. Alfa
Mutual. Ins. Co., 875 So. 2d 279 (Ala. 2003); Overturf v. Univ. of Utah Med. Ctr., 973
P.2d 413 (Utah 1999).
428. Weber v. Cranston Sch. Comm., 212 F.3d 41 (1st Cir. 2000); Lighton v. Univ.
of Utah, 209 F.3d 1213 (10th Cir. 2000); Wieters v. Roper Hosp., Inc., 58 F.App’x. 40
(4th Cir. 2003); Marcum v. Oscar Mayer Foods Corp., No. 98-3911, 1999 WL 617996
(6th Cir. Aug. 5, 1999); Ribando v. United Airlines, Inc., 200 F.3d 507 (7th Cir. 1999);
Am. Ironworks & Erectors, Inc. v. N. Am. Constr. Corp., 248 F.3d 892 (9th Cir. 2001);
Young v. Fed. Mediation and Conciliation Serv., 66 F.App’x. 858 (Fed. Cir. 2003).
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128 Harvard Negotiation Law Review [Vol. 11:43

The vast majority of these miscellaneous cases fall into three is-
sue categories: cases addressing various procedural implications of a
mediation request or participation (50); acts or omissions in media-
tion as a basis for independent claims (20); and insurance issues (12).
Cases outside these three main categories addressed such diverse is-
sues as the tax consequences of mediated settlements,429 whether
mediators are subject to veterans’ preference law,430 the propriety of
emergency motions to permit intervention in order to participate in
mediation,431 or whether a mediator’s valuation of a case should
have any bearing on a judge’s post-trial evaluation of a jury
award.432

A. Procedural Implications of a Mediation Request or

Participation

One of the most common procedural problems confronted by

courts is how mediation requests or participation relate to the
running of the statute of limitations. Often such disputes turn on

429. Emerson v. Comm’r, 85 T.C.M. (CCH) 1044 (T.C. 2003) (affirming IRS refusal
to consider portion of mediated settlement of contract/intellectual property dispute
non-taxable compensation for injuries or personal illness, where there was no men-
tion during mediation of a claim for personal injuries, other than mediator’s sugges-
tion, subsequently acted on by the parties, to “add a personal injury claim to the suit
as a vehicle to reach settlement”). See also Dorroh v. Comm’r, T.C. Summ.Op. 2003-
93 (T.C. 2003) (holding form attachment to mediated settlement which included a
remarks section where plaintiff noted that resignation was for “medical and mental
and physical trauma” insufficient to establish that cash payments were nontaxable on
account of personal injuries or personal sickness); Henry v. Comm’r, 81 T.C.M. (CCH)
1498 (T.C. 2001) (finding settlement proceeds fully taxable where record failed to es-
tablish that payments were made on account of the loss of the plaintiffs business rep-
utation or loss of their reputation as orchid growers).
430. Young, 66 F.App’x. 858 (holding that the veterans’ preference law does not
extend to mediators for the Federal Mediation & Conciliation Service, because, by
statute mediators, are appointed without regard to the federal civil service laws).
431. Micro Elecs. Group, Inc. v. J.F. Jelenko & Co., No. 3:00CV582-MU, 2002 WL
664052 (W.D.N.C. Apr. 16, 2002) (rejecting emergency motion to intervene in media-
tion by a third party whose primary link to the dispute was the fact that he had been
deposed and had provided copious documents to one of the parties). As noted by the
court, “[t]he Court cannot dispute the validity of the assertion . . . that ‘[m]ediation is
a way to avoid litigation.’ This truism does not confirm, however, that any nonparty
who desires should participate in mediation. Allowing that would clutter and impede
many a mediation by adding the voices of individuals who may or may not have some
great or remote interest to the din.” Id. at *1.
432. Thompson v. Running Arts, Inc., No. 976181, 2000 WL 282438 at *2 n.3
(Mass. Super. Ct. Feb. 8, 2000) (“[R]eject[ing] defendant’s contention that the value of
the case placed on it by a mediator at a pretrial mediation session is something the
court may take into account in assessing the permissibility of the jury’s ultimate
award.”).
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principles of statutory interpretation.433 Applying these technical

statutes requires complicated analysis. For example, in Michelson v.
Mid-Century Insurance Co.,434 the California Court of Appeals con-
cluded that participation in a statutorily authorized earthquake in-
surance mediation program resulted in tolling, but still dismissed the
plaintiff’s complaint because the time credited for mediation partici-
pation was insufficient to bring the claim within the statute of limita-
tions. The court rejected plaintiff’s argument that tolling should
extend to time of receipt of a letter indicating termination of the me-
diation effort. According to the court, the statute does not require
such notice,435 but instead expressly ends tolling in three specific cir-
cumstances, including the date mediation is completed without
agreement, as occurred in this case.
Courts may assess principles of equity or fairness in ruling on
whether the statutes of limitations should be tolled. If plaintiffs are
unable to establish with precision the timing and formality of a medi-
ation effort, tolling claims also are usually denied. For example, in
Cristwell v. Veneman,436 the court found that a plaintiff’s conclusory
allegation that he was involved in mediation and negotiation initi-
ated by agency officials “as a means to delay his claims,”437 fell short
of the required showing of affirmative misconduct necessary to in-
voke equitable tolling to excuse a late filing. Further, in Stewart v.
Memphis Housing Authority,438 defendant’s alleged delay in process-
ing plaintiff’s arbitration and mediation requests did not tilt the equi-
ties in favor of tolling, where plaintiff “did not approach the court

433. Landis v. Physicians Ins. Co., 628 N.W.2d 893 (Wis. 2001) (ruling that a stat-
utorily authorized mediation request tolled all time limitations, including any appli-
cable statute of repose); Hurlburt v. OHIC Ins. Co., No. 02-0860, 2003 WL 115589
(Wis. App. Jan. 14, 2003), review denied, No. 02-0860 (Wis. 2003) (reversing dismissal
of medical malpractice lawsuit and finding that mediation request tolled statute of
limitations); Gabe Staino Motors, Inc. v. Volkswagen of Am., Inc., No. Civ. A. 99-5034,
2003 WL 22735379 (E.D. Pa. Nov. 14, 2003) (ruling that under state statute gov-
erning disputes between vehicle dealers and distributors, the statute of limitations is
tolled from service of a demand for mediation until the parties have met with the
mediator).
434. 99 Cal. Rptr. 2d 804 (Cal. Ct. App. 2000).
435. Id. at 809.
436. 224 F. Supp. 2d 54 (D.D.C. 2002). See also Mosley v. Mo. Pac. R.R. Co., 839
So. 2d 1218 (La. Ct. App. 2003), writ denied by 845 So. 2d 1055 (La. 2003) (refusing to
toll the running of an abandonment period where mediation did not take place before
the court and on the record).
437. Cristwell v. Veneman, 224 F. Supp. 2d 54, 59-60 (D.D.C. 2002).
438. 287 F. Supp. 2d 853 (W.D. Tenn. 2003).
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130 Harvard Negotiation Law Review [Vol. 11:43

system until both the ninety-day Title VII filing period and the stat-
ute of limitations on the remaining claims had run by over two
years.”439
Aside from the intersection with the statute of limitations, medi-
ation participation was offered as an excuse for changed timing on a
host of procedural matters, including whether to:
• stay a trial date;440
• extend time for discovery;441
• suspend expert witness preparation;442
• accept late settlement offers under a prejudgment interest
statute;443
• permit amendment of a complaint;444
• dismiss a claim without prejudice;445 or
• delay forced sale of property.446
A number of cases considered whether mediation participation
results in waiver of certain claims or procedural rights.447 At least

439. Id. at 859.

440. Campbell v. Rudes, No. OT-00-030, 2001 WL 640806 (Ohio App. 2001) (re-
questing mediation does not stay trial date).
441. Wieters v. Roper Hosp., Inc., No. 01-2433, 2003 WL 550327, at *4 (4th Cir.
Feb. 27, 2003) (affirming district court refusal to grant extension of time for discovery
where moving party argued that basis for extension was that “valuable time had been
consumed in a lengthy mediation process”).
442. Grdinich v. Bradlees, 187 F.R.D. 77 (S.D.N.Y. 1999) (ruling that participation
in mediation is justifiable reason to temporarily suspend expert witness preparation).
443. Johnson v. Eldridge, 799 N.E.2d 29 (Ind. Ct. App. 2003) (concluding that a
settlement offer made three months late because parties were awaiting mediation
qualified as good cause for extension of time for purposes of making a required timely
written offer of settlement under the Indiana Tort Prejudgment Interest statute).
444. Navarro v. Microsoft Corp., 214 F.R.D. 422 (N.D. Tex. 2003) (denying plain-
tiff’s motion to amend complaint as untimely where only excuse for prolonged inaction
was plaintiff’s belief that the case would settle in mediation).
445. Duke of Westminster v. Cessna Aircraft Co., No. 02-2054-DJW, 2003 WL
21384320 (D. Kan. May 30, 2003) (granting plaintiff’s motion for dismissal of product
liability claims without prejudice, and rejecting defendant’s argument that plaintiff
excessively delayed the lawsuit by, among other things, aggressively pursuing
mediation).
446. United States v. Beyrle, No. 02-3424, 2003 WL 22138999 (10th Cir. Sept. 17,
2003) (affirming trial court conclusion that magistrate’s pre-trial order compelling
mediation of foreclosure action could not prevent forced sale of the property at issue
where the court decided a dispositive summary judgment motion in defendant’s favor
prior to start of mediation).
447. See, e.g., Thompson v. Capitol Police Bd., 120 F. Supp. 2d 78 (D.D.C. 2000)
(ruling that participation by employer in a mediation requested by victim of alleged
employment discrimination did not constitute a waiver of employer’s right to assert
untimely filing of conciliation request under the Congressional Accountability Act),
recons. denied, 2001 WL 797876 (Apr. 25, 2001); Palmer v. Erlandson, No. C8-99-891,
2000 WL 2621 (Minn. Ct. App. Dec. 27, 1999) (ruling that participation in settlement
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Spring 2006] Disputing Irony 131

two federal opinions make clear that participating in mediation

under the IDEA does not satisfy the requirement to exhaust adminis-
trative remedies before invoking judicial relief.448 In Louisiana ex
rel. T.N. & T.B.,449 the Louisiana Court of Appeals concluded that a
trial court has inherent authority to dismiss a delinquency petition
for good cause when juvenile defendants successfully complete medi-
ation. In Feinberg v. Townsend,450 the court held that a lawyer who
settles a legal malpractice action in mediation that results in volun-
tary dismissal of the former client’s claim against him is not eligible
to bring an action for wrongful use of civil proceedings against the
former client’s malpractice attorney. The mediated settlement is not
considered an action terminated in favor of the client’s current
attorney.

B. Acts or Omissions in Mediation as Basis for Independent

Claims

As the mediation process has become more institutionalized, it

was perhaps inevitable that parties would be fashioning independent
claims based on violations of newly acquired rights relating to media-
tion. Nowhere is this trend clearer than in the field of employment
law. For example, Title VII claimants have argued that employers
were responsible for a hostile work environment if they did not pro-
vide sufficient time to prepare for mediation,451 failed to offer media-
tion,452 or forced some employees, but not others, to participate in
mediation.453 Mediation also factored into allegations of improper re-
taliatory acts by employers, including using mediation to cancel an

discussions and court-ordered mediation does not estop defendant from seeking dis-
missal of a medical malpractice lawsuit based on plaintiffs’ failure to serve affidavit of
expert identification); In re Lance v. Melody, 108 Cal. Rptr. 2d 847 (Cal. Ct. App.
2001) (ruling that mother’s ex parte request for mediation of visitation dispute does
not constitute waiver of right to visitation hearing).
448. Weber v. Cranston Sch. Comm., 212 F.3d 41 (1st Cir. 2000); Tyler v. San
Antonio Elementary Sch. Dist., 253 F. Supp. 2d 1111 (N.D. Cal. 2003).
449. 789 So. 2d 73 (La. Ct. App. 2001).
450. 107 S.W.3d 910 (Ky. Ct. App. 2003).
451. Bryant v. Brownlee, 265 F. Supp. 2d 52 (D.D.C. 2003) (granting defendant
summary judgment on Title VII claims where, among many other things, plaintiff
complained that defendant did not provide sufficient time to prepare for mediation
and failed to participate in good faith, which, in plaintiff’s view, was evidence of hos-
tile work environment).
452. Roman v. Cornell Univ., 53 F. Supp. 2d 223 (N.D.N.Y. 1999) (failing to offer
mediation to a Hispanic employee is not evidence of unlawful discrimination).
453. Ribando v. United Airlines, Inc., 200 F.3d 507 (7th Cir. 1999) (rejecting fe-
male employee’s claim that she was subjected to a hostile work environment on the
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132 Harvard Negotiation Law Review [Vol. 11:43

employee’s contract,454 or terminating an employee after she dis-

closed a conflict of interest involving a mediator.455 In Johnson v.
E.I. Dupont De Nemours & Co.,456 the Federal District Court of Dela-
ware considered whether the statement of an employer’s attorney
during mediation of an employment dispute could be used as direct
evidence of the employer’s retaliatory animus in connection with a
subsequent workplace termination. The court ruled against using
the statement as direct evidence, noting that even the plaintiff con-
ceded he did not believe the attorney had authority to fire him.457
In Davis v. Horton,458 the Iowa Supreme Court refused to extend
the public policy exception to at-will employment relationships in or-
der to protect participation in mediation. Plaintiff maintained that
she was wrongfully discharged contrary to public policy because she
participated in a mediation program with her employer. The court
noted that while mediation is “encouraged and frequently beneficial,
it is not an action so imbued with public purpose” to support a wrong-
ful discharge claim by an at-will employee.459 The court also found as
a factual matter that the discharge was not a retaliation for the
mediation.
A mediation-based theory gave rise to a remedy in Department of
the Air Force 436th Airlift Wing, Dover Air Force Base v. Federal La-
bor Relations Authority.460 The D.C. Circuit Court of Appeals af-
firmed the finding of an unfair labor practice in the agency’s failure to
notify a union representative of and provide an opportunity for his
participation in the mediation of a union member’s EEO
grievance.461
Outside the employment area, courts have decided, among other
things, that breach of an alleged agreement to mediate does not state

basis of sex where she was forced to appear before a mediation committee while simi-
larly situated male employees were not).
454. Lighton v. Univ. of Utah, 209 F.3d 1213 (10th Cir. 2000) (allowing employer’s
attempt to get a mediation agreement canceling employee’s contract and placing him
on probation to be offered as evidence in unsuccessful employment retaliation claim).
455. Young v. County of Fresno, No. F035660, 2002 WL 533657 (Cal. Ct. App. Apr.
10, 2002) (holding that termination of employee after she disclosed conflict of interest
involving a mediator insufficient to establish an impermissible retaliatory act).
456. 60 F. Supp. 2d 289 (D. Del. 1999), aff’d, 208 F.3d 206 (3d Cir. 2000) (granting
summary judgment for defendant employer).
457. Id. at 294–95 (rejecting plaintiff’s assertion that “because DuPont was re-
quired to have in attendance at mediation those with authority to settle the suit, that
these people must therefore have had the authority to fire plaintiff”).
458. 661 N.W.2d 533 (Iowa 2003).
459. Id. at 536.
460. 316 F.3d 280 (D.C. Cir. 2003).
461. Id. at 287.
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a claim for which damage relief can be granted.462 The Ohio Su-
preme Court has ruled that neither the school district offering a me-
diation program, nor the teacher mediator presiding at a mediation
between high school students, is entitled to claim statutory immunity
for alleged failure to report known or suspected abuse disclosed by a
student-participant in mediation.463
The California Court of Appeals found no cognizable claim for
negligent infliction of emotional distress based on allegations that a
party brought an attorney to a mediation session in violation of pre-
arranged ground rules and because he “appeared for a brief few
seconds and then abruptly departed, refusing to participate.”464
However, in Overturf v. University of Utah Medical Center,465 the
Utah Supreme Court ruled that by holding a secretive mediation in
which a settlement to distribute funds to other heirs was reached, the
University of Utah could be held to have “cooperated, colluded, and
connived with the other heirs to deprive plaintiff of her rightful share
of compensation for her daughter’s wrongful death.”466
Finally, there were claims of harm caused simply by being in me-
diation or, conversely, being denied the opportunity to mediate. In
Groover v. Huntington Marina Ass’n,467 the participation of a condo-
minium association in mediation was offered as evidence of breach of
duty to act aggressively on behalf of individual owners. The court
held that mediation was “consistent with the public policy against
‘unproductive litigation’ and favoring private dispute resolution.”468
In Gamble v. Dollar General Corp.,469 the Supreme Court of Missis-
sippi affirmed dismissal of a claim for fraud based on alleged conceal-
ment of relevant insurance coverage during mediation, where the
detriment to the moving party was framed as loss of opportunity for a
successful mediation and an unfair opportunity for the concealing
party to measure strengths and weaknesses of the moving party’s
case in mediation. According to the Gamble Court, redress for such
non-disclosure claims should have been sought under court discovery

462. Martin v. Howard, 784 A.2d 291 (R.I. 2001). But cf. Korfmann v. Kemper
Nat. Ins. Co., 685 N.Y.S.2d 282 (N.Y. App. Div. 1999) (permitting action for damages
on alleged breach of agreement to mediate).
463. Campbell v. Burton, 750 N.E.2d 539 (Ohio 2001).
464. Uhrich v. State Farm Fire & Casualty Co., 135 Cal. Rptr. 2d 131, 144 (Cal.
Ct. App. 2003), review denied (Sept. 24, 2003).
465. 973 P.2d 413 (Utah 1999).
466. Id. at 415 (remanding to permit amendment of wrongful death action com-
plaint to include claim for collusion).
467. No. G030003, 2003 WL 122788 (Cal. Ct. App. Jan. 15, 2003).
468. Id. at *4.
469. 852 So. 2d 5 (Miss. 2003).
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134 Harvard Negotiation Law Review [Vol. 11:43

rules, rather than through an independent cause of action for

fraud.470

C. Insurance Cases

The Gamble case was not alone in presenting insurance-related

mediation questions. In Herrin v. The Medical Protective Co.,471 the
Tennessee Court of Appeals reversed a grant of summary judgment
for the defendant insurer, concluding there were genuine issues of
material fact precluding dismissal of claims for breach of contract,
fraud, breach of fiduciary duty, and breach of duty of good faith and
fair dealing based on the insurer’s decision not to renew policy after
allegedly telling the insured that his consent to mediated settlement
of a tort claim would not affect renewal.
More commonly, courts have confronted how to determine insur-
ance subrogation rights in cases settled through mediation.472 For
example, in British Columbia Ministry of Health v. Homewood,473 the
Washington Court of Appeals concluded that an insurer was not enti-
tled to reimbursement of medical payments made to a car accident
victim where her mediated settlement with tortfeasors was for less
than liability limits, leaving her less than fully compensated.
Whether insurers can seek indemnification for payments made pur-
suant to mediated settlements also is litigated frequently.474 And, in

470. Id. at 10.

471. 89 S.W.3d 301 (Tenn. Ct. App. 2002).
472. See, e.g., General Agents Ins. Co. of Am., Inc. v. Home Ins. Co. of Ill., 21
S.W.3d 419 (Tex. App. 2000) (ruling that reasonableness of settlement amounts of-
fered by co-insurer in mediation was not the critical subrogation issue before the
court); Skilstaf, Inc. v. Williams, No. 2001172, 2002 WL 31104062 (Ala. App. Sept. 20,
2002), j. aff’d. sub. nom., Ex parte Williams, 2004 WL 45154 (Ala. Jan. 9, 2004), op.
superceded on denial of reh’g by 2004 WL 1909459 (Ala. Aug. 27, 2004) (determining
that mediated settlement entitled employer to subrogation for a portion of employee’s
future benefits from third-party); Allstate Ins. Co. v. Hugh Cole Bldg., Inc., 71 F.
Supp. 2d 1180 (M.D. Ala. 1999) (holding that amount of settlement in mediation did
not establish the amount of damages in subrogation action with insurer when court
considers “made-whole” rule), certified question answered, 772 So. 2d 1145 (Ala.
2000).
473. 970 P.2d 381 (Wash. Ct. App. 1999).
474. See, e.g., Lititz Mut. Ins. Co. v. Royal Ins. Co. of Am., No. 98-2256-JWL, 1999
WL 319073 (D. Kan. Apr. 16, 1999) (concluding that where trial court journalized a
settlement agreement, and terms of agreement are not found, the journal entry is
treated as a decree, partly of a contractual nature, and the party’s intent regarding
the journal entry must be addressed in indemnification action); Prime Hospitality
Corp. v. General Star Indem. Co., No. Civ. 1997-91, 1999 WL 293865 (D.V.I. Apr. 29,
1999) (concluding that a direct insurer does not have a duty to represent interests of
excess insurer in settlement negotiations); Triton Dev. Corp. v. Commerce & Indus.
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American Family Mutual Insurance Co. v. Hinde,475 the Illinois

Court of Appeals affirmed grant of summary judgment compelling an
insurance company to arbitrate an underinsured motorist claim, con-
cluding that a mediated settlement exhausted the underinsured
tortfeasors’ policy even though portions of the settlement funds were
contributed piecemeal by third-party defendants and a dramshop de-
fendant in a companion case.

X. LESSONS LEARNED
Although our focus has been on the minute details, stepping back
and reflecting on the five years’ worth of litigated mediated issues
leads us to several conclusions about the state of the mediation pro-
cess, and leads us to make several recommendations for statute or
rule reform. In addition, we offer some “best practice” suggestions to
help readers avoid having one of their own cases end up among medi-
ation case law updates in coming years.

A. Statute and Rule Reform

1. Enforcement
While the database as a whole provides no evidence of systematic
coercion or duress corrupting the mediation process, there is a stead-
ily increasing number of enforcement disputes. No doubt, such cases
frequently are caused by the buyer’s remorse that plagues all negoti-
ations, whether facilitated or not. Compounding the problem is the
innocent, but often flawed, overconfidence that the mediated “out-
line” for settlement will be easily formalized into enforceable legal
documents at some later point. Add to this mix the presence of a
neutral third party who has a vested interest in attaining settlement,
and you have the perfect recipe for an early declaration of “victory”
when in reality no deal is really done.

Ins. Co., No. Civ. A. 3.98-CV-1263-B, 1999 WL 293877 (N.D. Tex. May 4, 1999) (grant-
ing summary judgment for defendant insurer for indemnification sought on mediated
settlement because there was no obligation to defend).
475. 705 N.E.2d 956 (Ill. App. Ct. 1999). See also Gray v. State Farm Mut. Auto.
Ins. Co., 734 So. 2d 1102 (Fla. Dist. Ct. App. 1999) (remanding to determine whether
the insured waived insurer’s obligation to pay uninsured motorist claims by failing to
object at mediation); Ruddy v. State Farm Mut. Auto. Ins. Co., 596 N.W.2d 679 (Minn.
Ct. App.1999) (ruling that an insured did not forfeit an uninsured motorist claim by
settling the underlying negligence claim with the tortfeasor in mediation); McDole v.
Alfa Mut. Ins. Co., 875 So. 2d 279 (Ala. 2003) (foreclosing claims for alleged bad faith
to pay uninsured motorist benefits where payments made by the self-insured em-
ployer pursuant to a mediated settlement meant that the employer was not
“uninsured”).
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136 Harvard Negotiation Law Review [Vol. 11:43

For the reasons explored in Part III, traditional contract de-

fenses have generally failed to guarantee a fair facilitative process
and self-determined agreement. We have both written critically in
the past about the pitfalls of highly specialized approaches to media-
tion enforcement issues476 and remain skeptics today. However, the
scale of enforcement litigation merits action. Most appealing is the
proposal by Professor Nancy Welsh477 of the Dickinson School of Law
to expand the utilization of cooling-off periods, within which parties
are free to exercise a right of rescission.478 With time to reflect, free
from perceived or actual pressure, parties can best decide what is in
their interest. This bright-line approach is far from perfect. It will
not solve problems relating to undiscovered mistake or fraud, and is
difficult to implement when settlement occurs, as it so often does, on
the eve of trial. Still, it may be the single most effective way to honor
self-determination and assist parties in avoiding litigation about
whether they in fact reached agreement.

2. Confidentiality

At the very least, we should codify what is already a de facto

standard in practice—allowing third parties to get access to media-
tion evidence, particularly mediation settlements, when mediation
defines their legal rights. Good examples are class actions mediated
without involvement of all affected class members, or insurance dis-
putes defining subrogation and indemnification rights or obligations
of others. Courts already routinely examine the mediation process
creating such agreements; the authority to do so without confidenti-
ality limitations should be express.
In addition, in light of the frequency of mediator testimony, the
law should encourage a focus not just on subject matter (i.e., what are
the relevant exceptions to a mediation privilege), but also on the na-
ture of evidence, particularly by drawing a distinction between objec-
tive and subjective testimony. Mediator testimony is most

476. See Thompson, supra note 122; Coben & Thompson, supra note 183. R
477. Welsh, supra note 2, at 86–92. R
478. See Thompson, supra note 122, at 553 n.261 (citing examples of states which R
have adopted the rescission approach, including: CAL. INS. CODE § 10089.82(c) (West
2003) (providing a three-day cooling-off period for unrepresented parties in earth-
quake insurance mediations); FLA. STAT. ANN. § 627.7015(6) (West 2003) (allowing an
insured in a property insurance mediation three days to rescind a mediated settle-
ment agreement); MINN. STAT. § 572.35(2) (2002) (providing a 72-hour cooling-off pe-
riod in debtor/creditor mediations); MINN. STAT. ANN. SPECIAL R. OF PRAC. FOR
FOURTH JUDICIAL DIST. 2.7 (West 2002) (providing a seventy-two-hour right of rescis-
sion of a mediation agreement in conciliation court).
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appropriate if limited to objective matters such as statements made,

party conduct, and documents to the extent such evidence is offered
and relevant for one of the exceptions to mediator privilege. How-
ever, purely subjective evidence such as the mediator’s thought pro-
cess, mental impressions, or speculation on the thought processes of
others, is rarely necessary and should be absolutely prohibited as ut-
terly corruptive of the mediator’s promise of neutrality.479
Legislation that creates special enforceability or confidentiality
rules for mediated settlements needs to be clear about when these
special mediation rules apply. What is a mediation, when does it be-
gin, and when does it end are all critical questions. The Uniform Me-
diation Act provides excellent guidance for defining what mediation
is480 and when mediation begins—at least for the purposes of estab-
lishing when the privilege or confidentiality rules are applicable.481
Unfortunately, the issue of when a mediation ends is not addressed
in the UMA.482 The drafters correctly wrote that courts will deter-
mine this issue when it is presented; unfortunately, this means that
parties have to bear the expense and uncertainty posed by litigation
to get an answer.

479. One approach to achieving this objective is provided by a 1999 Minnesota

legislative proposal (H.F. No. 2410, 1991 Minn. Laws, 81st Sess., Apr. 19, 1999),
drafted by Peter N. Thompson, which, in section 5a, provides that when mediator
testimony is permitted:
The mediator is not competent to testify at a hearing, deposition, or trial
about the mediator’s thought processes or mental impressions or about the
parties’ thought processes except as may be relevant and admissible in a civil
or criminal action or administrative or professional misconduct proceeding
by or against the mediator. The mediator is competent to testify to objective
matters perceived by the mediator during the mediation including state-
ments made, conduct of the parties, conduct of the mediator, and documents
produced or signed to the extent that the testimony is offered for and is rele-
vant to one of the exceptions to the mediation privilege set forth.
See generally Peter N. Thompson, Confidentiality, Competency and Confusion: The
Uncertain Promise of the Mediation Privilege in Minnesota, 18 HAMLINE J. PUB. L. &
POL’Y 329, 368–74 (1997).
480. UNIF. MEDIATION ACT § 2 (1) provides that a mediation is “a process in which
a mediator facilitates communication and negotiation between parties to assist them
in reaching a voluntary agreement regarding their dispute.”
481. UNIF. MEDIATION ACT § 2 (2) provides “‘Mediation communication’ means a
statement, whether oral or in a record or verbal or nonverbal, that occurs during a
mediation or is made for purposes of considering, conducting, participating in, initiat-
ing, continuing, or reconvening a mediation or retaining a mediator.”
482. See UNIF. MEDIATION ACT, Reporter’s Notes, Section 2(2) (“Responding in part
to public concerns about the complexity of earlier drafts, the Drafting Committee also
elected to leave the question of when mediation ends to the sound judgment of the
courts to determine according to the facts and circumstances presented by individual
cases.”).
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138 Harvard Negotiation Law Review [Vol. 11:43

3. Taxation of Mediation Costs

Mediation expenses are now a routine part of litigation in many
jurisdictions. Under current law, courts have exercised discretion to
tax mediation costs. But there is no good policy reason to force par-
ties to waste precious resources (theirs and the court’s) litigating
whether mediation costs are taxable. Such authority could easily be
incorporated into existing relevant federal and state statutes and
court rules relating to taxation of costs.483

B. Best Practice Recommendations

There are no silver bullets to insulate mediation from litigation.
But there are a number of practical steps that mediators, lawyers,
and consumers can take to help avoid their own “disputing irony.”
First, mediators and lawyers should be realistic about the expec-
tations they create for clients about the extent of mediation confiden-
tiality. With so much mediation evidence finding its way into court
opinions,484 promising too much on this issue is grossly misleading.
Mediators who make opening statements to the effect that anything
said in mediation is absolutely confidential and will never leave the
mediation room may be making misleading statements that can un-
dermine party self-determination. Instead, mediators should aspire
to strike a balance between advocating candor and ensuring informed
consent about the limits of mediation confidentiality. This does not
mean delivering a lecture on the nuances and complexity of evidence
rules and statutes.485 For one thing, the delivery of such complex
legal information raises confusion about the mediator’s role; in addi-
tion, a technical, legalistic beginning to mediation does little to pro-
mote a problem-solving atmosphere. Mediators should emphasize
what they can control: they can promise not to voluntarily disclose
information; they can choose to vigorously contest subpoenas to force
their testimony. With respect to the use of mediation information by
others, mediators are best advised to state a general principle of con-
fidentiality but make clear there are exceptions (which vary from

483. See, e.g., 28 U.S.C. § 1920; FED. R. CIV. P. 54(d).

484. See supra notes 40–109 and accompanying text. R
485. Visit Hamline’s Mediation Case Law project website (http://www.hamline.
edu/law/adr/mediationcaselawproject) to view a training video illustrating the folly of
a mediator attempt to comprehensively explain the law of confidentiality under the
Uniform Mediation Act as part of an opening statement. The confidentiality “presen-
tation” runs over six minutes in length. Needless to say, such a detailed explication of
law has a visibly depressing effect on party (and lawyer) enthusiasm for the media-
tion process.
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state to state, and even from court to court). Parties needing more
specific legal advice can and will seek it from their lawyers. The mes-
sage for lawyer representatives in mediation is more complex. One
logical response is to strategically withhold sensitive information. Of
course, this response is directly at odds with the mediator’s goal of
candid, full disclosure. In fact, parties often turn to mediators pre-
cisely because the informational poverty caused by adversarial bar-
gaining presents a significant barrier to settlement.486 A better
approach, though certainly not fool-proof,487 is to contract for confi-
dentiality protections beyond those offered by state or federal statute,
court rule, or common law.488
Second, mediators should always use an agreement to mediate
that is executed by all participants. The signed agreement helps en-
sure that there are mutual expectations regarding critical issues such
as who participates, when mediation ends, the role of the mediator,
the extent of confidentiality, and any special conditions negotiated
regarding the binding nature or enforcement of mediated settle-
ments. Given court reluctance to sanction for breaches of confidenti-
ality, parties should contract for liquidated damages or other
remedies if breach is anticipated to be a significant concern. A signed
agreement to mediate is also helpful as a “triggering mechanism” for
statutory confidentiality protections.489 Finally, the agreement can
also serve as the formal contract outlining the terms and conditions

486. See Robert A. Baruch Bush, What do We Need a Mediator for?: Mediation’s
“Value-Added” for Negotiators, 12 OHIO ST. J. ON DISP. RESOL. 1, 8 (1996) (noting that
“strategic concealment” is logical but inevitably results in less than optimal
outcomes).
487. Although no case in our five-year database explicitly refused to enforce party
contractual agreements to provide more confidentiality than provided by law, as a
general principle courts are not necessarily bound by party stipulation on the law.
See generally Stipulation of Parties as to the Law, 92 A.L.R. 663 (1934).
488. See HAROLD I. ABRAMSON, MEDIATION REPRESENTATION: ADVOCATING IN A
PROBLEM-SOLVING PROCESS, § 5.13, 212–15 (NITA 2004).
489. For example, parties can invoke the confidentiality protections of the Uni-
form Mediation Act in several ways, including where “the mediation parties and the
mediator agree to mediate in a record that demonstrates an expectation that media-
tion communications will be privileged against disclosure.” UNIF. MEDIATION ACT
§ 3(a)(2). Moreover, at least one state, Minnesota, has a statutory scheme to protect
mediation confidentiality that on its face only applies if mediation is conducted pursu-
ant to an agreement to mediate. Minn. Stat. § 595.02, subd. 1(l) (“A person cannot be
examined as to any communication or document, including worknotes, made or used
in the course of or because of mediation pursuant to an agreement to mediate.”).
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140 Harvard Negotiation Law Review [Vol. 11:43

of mediator compensation. Indeed, the recently revised Model Stan-

dards of Conduct for Mediators490 requires that “a mediator’s fee ar-
rangement should be in writing unless the parties request
otherwise.”491 The superceded 1994 version of the standards were
considerably less directive on the necessity of written contractual
agreements, noting only that “[t]he better practice in reaching an un-
derstanding about fees is to set down the arrangements in a written
agreement.”492
Third, mediators and all counsel should aggressively search for
conflicts of interest and err on the side of disclosure. Courts are quite
accepting even of serious potential conflicts of interest if the conflicts
are disclosed up front. What level of conflicts investigation are
mediators required to complete? In our view, the Reporter’s notes to
the revised Model Standards of Conduct for Mediators (April 2005)
correctly states the answer: the extent of a conflicts check varies by
practice context, ranging from firm-wide, pre-mediation screening for
complex cases, to on-the-spot inquiry of participants in those pro-
grams where mediators are called to work on smaller cases “immedi-
ately upon referral.”493 Of course, the conflicts challenges do not end
with the mediation itself. The “downstream” effects of mediation re-
lationships also are critical. The 2002 revisions to Model Rule of Pro-
fessional Conduct 1.12 provide appropriate guidance for lawyers who
also serve as mediators. The rule prohibits representation of persons
in connection with a matter in which the lawyer participated as a
mediator “unless all parties to the proceeding give informed consent,
confirmed in writing.”494 The prohibition applies to the lawyer’s

490. The Model Standards of Conduct for Mediators was created in 1994 and ap-
proved and adopted by the American Arbitration Association, the American Bar Asso-
ciation’s Section of Dispute Resolution, and the Association of Conflict Resolution. In
April 2005, a joint committee of representatives from those organizations completed a
systematic revision of the standards, which are pending for approval by the drafting
organizations.
491. MODEL STANDARDS OF CONDUCT FOR MEDIATORS (Apr. 2005), Standard
VIII(A)(2).
492. MODEL STANDARDS OF CONDUCT FOR MEDIATORS (1994), section VIII.
493. Reporter’s Notes, Apr. 10, 2005, section V(E), http://moritzlaw.osu.edu/dr/
msoc/pdf/reportersnotes-april102005final.pdf (“For a complex case that comes to a
mediator through his or her law firm, best practice consists of making a firm-wide
conflicts check at the pre-mediation phase. By contrast, for a mediator of an interper-
sonal dispute administered by a community mediation agency who is charged with
mediating the case immediately upon referral, making an inquiry of the parties and
participants at the time of the mediation regarding potential conflicts of interest may
be sufficient.”).
494. MODEL RULES OF PROF’L CONDUCT R. 1.12(a).
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firm,495 unless the disqualified lawyer is properly screened496 and

written notice promptly provided to the parties and tribunal.497
Unfortunately, there is no equally clear bright line governing a
mediator’s future relationships with mediation participants. For ex-
ample, the revised Model Code of Standards for Mediators states
that, when considering such relationships, mediators should evaluate
a range of factors, including “time elapsed following the mediation,
the nature of the relationships established, and services offered when
determining whether the relationships might create a perceived or
actual conflict of interest.”498 In our view, better practice would be a
disclosure and consent model.
Fourth, counsel and unrepresented parties need to inquire in or-
der to understand up front the parameters of the process on which
they are embarking. Make sure there is agreement on the level of
confidentiality expected and the finality of agreements reached.
Mediators should take responsibility to ensure that the interests and
roles of the various participants, especially their own (particularly if
the neutral is a court official), are expressly stated, rather than as-
sumed. The necessity of working hard to attain clarity of role and
expectations is critical given the ambiguities inherent in the intersec-
tion of non-adversarial mediation and litigation. This tension is for-
mally addressed in the newly adopted Model Rule of Professional
Conduct 2.4, which, among other things, mandates that a lawyer
serving as a mediator “shall inform unrepresented parties that the
lawyer is not representing them”499 and further directs that when
“the lawyer knows or reasonably should know that a party does not
understand the lawyer’s role in the matter, the lawyer shall explain
the difference between the lawyer’s role as a third-party neutral and
a lawyer’s role as one who represents a client.”500 Good practice sug-
gestions also can be found in the February 2002 ABA Section of Dis-
pute Resolution on Mediation and the Unauthorized Practice of
Law.501 The resolution recommends that mediators define their role
and limits of their role by making three disclosures to parties:

495. MODEL RULES OF PROF’L CONDUCT R. 1.12(c).

496. MODEL RULES OF PROF’L CONDUCT R. 1.12(c)(1).
497. MODEL RULES OF PROF’L CONDUCT R. 1.12(c)(2).
498. MODEL CODE OF STANDARDS FOR MEDIATORS (Apr. 2005), Standard III(F).
499. MODEL RULES OF PROF’L CONDUCT R. 2.4(b).
500. MODEL RULES OF PROF’L CONDUCT R. 2.4(b).
501. American Bar Association Section of Dispute Resolution on Mediation and
the Unauthorized Practice of Law (adopted Feb. 2, 2002), http://www.abanet.org/dis-
pute/resolution2002.pdf.
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a. That the mediator’s role is not to provide them with legal rep-
resentation, but rather to assist them in reaching a voluntary
agreement;
b. That a settlement agreement may affect the parties’ legal
rights; and
c. That each of the parties has the right to seek the advice of
independent legal counsel throughout the mediation process
and should seek such counsel before signing a settlement
agreement.502
Fifth, all mediation participants should better anticipate that
rights and interests of third parties are often implicated by mediation
discussions and settlements. Mediators are not, in our view, over-
stepping their bounds by actively encouraging parties and their rep-
resentatives to consider the third-party impact of mediation
deliberations. Given the myriad ways that third-party impact cases
routinely appear in the database—insurance disputes, class actions,
public policy challenges in family cases—deliberate attention to third
party consequences should be a litmus test for effective mediator
practice. And as noted above in the statute/rule reform recommenda-
tions, special treatment of confidentiality is likely in such cases—a
matter that should be discussed, rather than assumed.
Sixth, given the significant body of duty to mediate and sanctions
opinions raising issues of attendance and authority, mediators and
lawyers should be particularly aggressive in insisting that decision-
makers with clear settlement authority be present throughout the
entire course of mediation. Partial satisfaction of this obligation is
particularly problematic. Like therapy, where the most work gets
done in the final five minutes of a 30-minute session, seasoned
mediators and mediation advocates know that the closing moments of
mediation are often the most fluid and productive. Accordingly, the
departure of a decision-maker at the eleventh hour should leave eve-
ryone in the room concerned. Rather than push to close the deal,
time might be better spent negotiating the appropriate place and
time to resume a mediation with all in attendance. In some jurisdic-
tions, phone participation may not be enough.
Seventh, all involved parties should be aware of the potential for
disconnect between the informal outline of agreements reached at
mediation and the promised delivery by lawyers of formal settlement
documents at some future point. The best option is to finalize settle-
ment documents in their entirety at the mediation table. If that is

502. Id.
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not possible, at the very least, parties should reach agreement on the
consequences for failure to generate formal documents (e.g., no agree-
ment; the informal outline becomes enforceable; a return to media-
tion). However, parties would be well advised to think twice before
resorting to one increasingly common solution to drafting problems—
having the mediator switch roles to arbitrate resolution. This hybrid
ADR process raises the specter of an ethical challenge.
Eighth, one of the most common post-mediation drafting
problems is the text of releases. The database is full of opinions
where lawyers agreed to use “standard” releases only to thereafter
litigate both the nature of claims covered and extent of release.
Mediators would be doing a particularly good service if they “reality-
tested” with vigor on this issue. If releases are really mere formali-
ties, counsel should come to the mediation with standard form re-
leases to be filled out and signed at the mediation.
Ninth, if a mediated settlement by design leaves open issues for
court decision, seek clarity on the nature of anticipated court review.
Attorneys’ fees are a common sore point. Are you asking the court to
simply determine the amount of fees to be awarded, or looking for a
decision on whether there was a “prevailing” party entitled to fees?
Finally, parties should be especially thoughtful in the drafting of
pre-dispute clauses. Including a mediation obligation in a multi-step
clause or conditioning attorneys’ fee awards on mediation participa-
tion gives the other party a legal right that courts are likely to up-
hold. Accordingly, creating the contractual obligation is unwise
unless honoring it will really be in one’s best interest.

CONCLUSION

At the April 2005 American Bar Association annual ADR section

meeting, we began a session on the topic of mediation case law by
asking audience members how many times they thought U.S. state
and federal judges had been forced to rule on disputed mediation is-
sues in the time period of our study 1999–2003. Answers ranged
from ten to several hundred. No one in the room offered an answer
remotely close to the actual number we discovered by culling the rele-
vant Westlaw databases—1223 opinions.
Frankly, had we known the full scale of contemporary mediation
litigation at the beginning of this project, we might, quite wisely,
have chosen not to undertake it. But much like mediation partici-
pants, who, having invested precious time in settlement discussions,
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144 Harvard Negotiation Law Review [Vol. 11:43

feel compelled by their investment to close the deal, we chose to com-

plete the study.503
More than anything else, the project confirms the development of
a broad and evolving “common law” of mediation. This body of “com-
mon law” makes especially prescient the observation over a decade
ago by Carrie Menkel-Meadow that the attempt to reform the rigid
adversary system by institutionalizing court-connected ADR may
have the unintended consequence of co-opting the creativity and in-
novation that characterizes ADR.504 Hundreds of litigated cases each
year, together with efforts like the drafting of the Uniform Mediation
Act, inevitably mean that mediation practice is increasingly defined
and standardized by courts and legislatures. The full impact of this
aspect of institutionalization remains to be seen.
For now, mediators, parties, and lawyers, must swim in a rela-
tive sea of ambiguity. They are brought together in a process de-
signed to honor self-determination and promote collaborative
approaches to dispute resolution. Yet the success or failure of such
efforts, including the propriety of the individual acts and omissions of
its participants, are increasingly judged in the purely adversarial
world of litigation. Sophisticated players know and can plan for this
ambiguity with careful strategies calculated to achieve maximum ad-
vantage. This of course inevitably skews the evolution of mediation
toward a future where it begins to resemble litigation; mediation be-
comes an alter ego, not an alternative. This “legalization” of media-
tion is certainly disturbing to mediation proponents. Far more
disturbing, in our view, is the impact of ambiguity on the unsophisti-
cated participant, the one-time player, who risks being lulled into the
perceived safety of a non-adversarial process not knowing or antici-
pating the shadow of litigation just beyond. Ignorance may be bliss.
But ignorance of the increasingly common intersection of mediation
and law does little to serve the principle of self-determination so com-
monly stated as the heart of mediation.

503. Much to the chagrin of our families, coding is underway for 2004 and 2005
mediation cases.
504. See Menkel-Meadow, supra note 159, at 9 (“[W]e are beginning to see the R
development of case and statutory law and, dare I say, a ‘common law’ or ‘jurispru-
dence’ of ADR.”). See also Press, supra note 1, at 59 (“In Florida we have seen the R
development of a common law of mediation.”).
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APPENDIX A: CASE CODING QUESTIONAIRE

1. Case number:
2. Year:
3. Jurisdiction:
4. Case Citation:
5. Published Opinion: Yes No
6. Level of Court: Trial Trial/Appellate
Intermediate Appellate Supreme Court
7. Type of Case: PI K/Com Family Law
Employment Estate Malpractice
Tax/Bankruptcy IDEA Other
8. Subject Matter Code:
A. Enforcement Yes No
B. Sanction Yes No
C. Duty to Mediate Yes No
D. Confidentiality Yes No
E. Ethics/Malpractice Yes No
F. Med/Arb Yes No
G. Fees Yes No
H. Cond. Precedent Yes No
I. Other Yes No
9. Confidentiality
A. Mediator Evidence: NK/NA Testified Mediation
Evidence
B. Mediation Communications: NK/NA Oral Written
C. Privilege or Rule Raised: NK/NA Upheld
Upheld in Part Not Upheld
10. Sanctions
A. Sanctions Granted: Yes No NK/NA
11. Enforcement Sub-Issues
A. Agreement in Court Order: Yes No NK/NA
B. Agreement Enforced: Yes No
Modified in Part Remand NK/NA
C. Contract Issues Raised:
i. No Agreement
a. No Meeting of the Minds Yes No
b. Agreement to Agree Yes No
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146 Harvard Negotiation Law Review [Vol. 11:43

c. Formality: Not in Writing Not Signed

Not Filed Magic Words NK/NA
d. Other
ii. Own attorney Lacked Authority Misconduct
Both NK/NA
iii. Standard Contractual Defenses
a. Fraud Yes No
b. Duress Yes No
c. Undue Influence Yes No
d. Mutual Mistake Yes No
e. Unilateral Mistake Yes No
f. Statute of Limitations Yes No
g. Unconscionability Yes No
iv. Mediator Misconduct
a. Conflict of Interest/Bias Yes No
b. Misrepresentation Yes No
c. Undue Influence Yes No
d. Duress Yes No
v. Miscellaneous Defenses
1. Performance/Breach Yes No
2. Public Policy Yes No
3. Contract Interpretation Yes No
4. Changed Circumstances/Party
Change of Mind Yes No
5. Unfair Process Yes No
6. Other Yes No
D. Other Enforcement Issues:
i. Class Action Approval Yes No
ii. Third Party Impact Yes No
iii. Miscellaneous Yes No