A Case For Maintaining Mediation Notes?

Back from his aborted summer vacation, Geoff Sharp brings our attention to an interesting article from Australian mediator Michael Creelman.    Mr. Creelman argues that the practice of destroying notes after mediation “could eventually be the downfall of those particular mediators.”

The argument seems to revolve around two situations – the mediator as witness in later proceedings and the mediator as defendant in a malpractice action.

I’m not sure that the former situation presents a compelling argument, at least here in the Great State of Georgia.  Under our rules,the mediator for a court-annexed or court-referred mediation cannot be

subpoenaed or otherwise required to testify concerning a mediation in any subsequent administrative or judicial proceeding.  A neutral’s notes or records are not subject to discovery. Notes and records of a court ADR program are not subject to discovery to the extent that such notes or records pertain to cases and parties ordered or referred by a court to the program.

That would preclude any necessity for maintaining notes.  If they are not subject to discovery, and are not admissible, then why maintain them at all?

It remains to be seen whether this rule would protect the mediator in a strictly private mediation.  If not, then Federal Rule of Evidence 408 may provide some protection for a mediator, as the communications during a mediation can be considered “conduct or statements made in compromise negotiations.”  Further, while there is some ambiguity in the law, the Georgia counterpart to Rule 408, OCGA 24-3-7, states, in part, that “admissions or propositions made with a view to a compromise are not proper evidence.”  Either way, I see no compelling reason to keep my notes, and like Geoff, I make sure to tell my clients that I destroy all notes upon completion of the mediation.

As for the latter situation, the Model Court Mediation Rules for Georgia state that

No neutral in a court-annexed or court-referred program shall be held liable for civil damages for any statement, action, omission or decision made in the course of any ADR process unless that statement, action, omission or decision is 1) grossly negligent and made with malice or 2) is in willful disregard of the safety or property of any party to the ADR process.

Again, there is no such immunity for strictly private mediations; however, I struggle to see any viable theory under which a mediator can be held liable for professional malpractice or negligence.   For starters, what is the legal duty?  And what would be the breach of that duty?  If the parties are represented by counsel, where is the causation?

Frankly, I got into mediation because I am terrible at record keeping.  I am not a pack rat.  I am not good at saving things (it drives my accountant – and my wife – nuts).  I relied on the abilities of my assistants to keep my files straight.  I really like the ability to shred my notes at the end of the mediation.  Personal predilections aside, I still think that the best way to maintain the confidentiality of a mediation is to shred the notes the mediator has taken.

This might present an opportunity to write an article for the State Bar Journal. Maybe I’ll put it on my TO DO list…..