Saturday, October 17, 2009

Duties to Clients or Country?

Well, here it comes. I'm about to receive a Subpoena in a U.S. District Court Case which didn't settle and went to trial for my mediation notes. I've been talking to the lawyers all week. Up until now, I considered them to be my "clients" (together with their clients, none of whom I met at the hearing). I didn't see any obligation to produce notes (and I didn't keep them) of the confidential negotiations, but I also didn't see any harm in making ex parte communications as to how I recalled the negotiation going. (No offers no demands, the parties, 18 months ago, were too far apart to settle absent a whole lot of discovery and investigation into an alleged civil rights/police false arrest case). So I told the lawyers what I remembered and that I had no notes. Next best? My testimony! Not going to do it, but it will cost me some in quashing the subpoena or hiring someone to make a special appearance to advise the court of why I'm not going to testify. What a country! I'm pretty confident that the confidentiality clause will be upheld and I won't be required to testify or produce notes, but the process for that response is sure still elusive. Also, the Federal Judges in our District don't seem to appreciate the sanctity of the negotiation process in the same way as State Court Judges. This isn't the first time a mediator in our local area has been asked to testify about the negotiations. What a mess!

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