As the mediation of a partnership dissolution case progresses, the mediator is convinced that the plaintiff has been royally shafted by the defendant.
She is especially appalled by several instances where, towards the end of their partnership relationship, defendant (without consultation with plaintiff) purchased with partnership funds thousands of dollars of goods and services that were at best only marginally useful to the partnership, several of which the plaintiff is clearly unaware of – e.g., membership in an exclusive dining club, a leased Mercedes and a “business trip” to Hawaii. Additionally, the plaintiff is represented by a friend who just finished law school last spring, passed the bar exam a month ago and appears to be in way over his/her head.

What ethical rules apply to the mediator’s conduct from this point forward in the mediation? (5)

b. At a subsequent trial of the case above (which was not settled), one of the parties seeks to introduce communications from the mediation regarding one of the key issues in the case. Both parties (the same ones present in this court proceeding and the mediation) have signed a waiver agreeing to permit disclosure of all mediation communications.

Can the court permit the parties to testify regarding communications made during the mediation? (4)

If the parties’ mutually agree to have the mediator testify regarding communications made during the mediation, can the court compel the mediator to testify? Please include in your answer whether or not the court may permit the mediator to testify if he/she also signs the waiver. (4)

If one or both of the parties want to have a non-party participant (for e.g., one of the party’s experts) testify regarding mediation communications, does the parties’ waiver allow the court to compel her/his testimony or does the non-party participant also need to agree to the waive his or her confidentiality privilege? (2)
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