First let me announce that my health is such that I am back to full time mediating and have good availability.
In re Daley, 29 S.W.3d 915,918 (Tex.App.-Beaumont 2000, org. proceeding) interpreted Sections 154.053 and 154.073 of the Texas Civil Practice and Remedies Code narrowly and allowed the mediator’s testimony into evidence. Daley wanted to have the testimony of his actions during a mediation protected by 154.053 & 154.073. Court of Appeals held 154.053 restricts only the disclosure of matters that occur during the “settlement process” and testimony that Daley left the mediation without the mediator’s permission was allowed as it was unrelated to the settlement process. The Court further held at page 918 that “154.073 is not so broad as to bar all evidence regarding everything that occurs at mediation from being presented to the trial court. Rather than a blanket confidentiality rule for participants, the statute renders confidential ‘a communication relating to the subject matter of the dispute of any…dispute’ made by a participant in an ADR procedure.” The Court then found that testimony as to the actions of a participant during mediation that did not involve the subject matter of the dispute were admissible.
Under the offensive use doctrine a person waives confidentiality of privileged information if: (1) the party asserting the privilege is seeking affirmative relief; (2) the privileged information sought is such that, if believed by the fact finder, in all probability it would be outcome determinative; and (3) disclosure of the confidential information is the only means by which the aggrieved party may obtain the evidence. Republic Ins. Co. v Davis, 856 S.W.2d 158, 163 (Tex. 1993) (orig. proceeding).
The Court in Alford v. Bryant, 137 S.W.3d 916, 921 (Tex.App. Dallas 2004) rehearing overruled (July 19, 2004), specifically held that “the offensive use doctrine should apply….to the mediation confidentiality statutes.” When a party asserts a privilege in an offensive manner they have exceeded the scope of the privilege. Ginsberg v. Fifth Court of Appeals, 686 S.W.2d 105, 107 (Tex. 1985).
In Alford a contract dispute settled in mediation. Id at 919. The original defendant then sued her attorney for failure to advise her of the risks and benefits of settlement. Id. In defense the mediator was called to testify about the substance of the disclosure made by the attorney to the client. Id. The trial court did not allow the mediator to testify on the basis of Sec. 154.053 Tex. Civ. Prac. & Rem. Code. Id. at 921. The Court of Appeals reversed under the offensive use doctrine. Id at 922. First, the original defendant had sought affirmative relief from the court. Id. Second, the mediator’s testimony would have likely been outcome determinative as the only other evidence would have been “a veritable swearing match” between the two litigants. Id. Third, the mediator was the only other person present when disclosure of the risks and benefits of settlement was made and could present this critical evidence to the court. Id.
Special thanks to Tom Greenwald for providing me with these cases. Have a Happy Thanksgiving.