In Higgins v. Hahn – an unpublished per curiam Wisconsin Court of Appeals decision issued May 4, 2022 – a mediator in a divorce action testified in the trial court about some of what occurred during the mediation. Such a scenario implicates Wis. Stat. section 904.085, which governs the admissibility of communications in mediation.

Case Facts

By way of background, the parties reached agreement in mediation. However, after the divorce was finalized, the husband realized the value of the wife’s 401K was higher than the amount used in settlement, and brought a post-judgment motion to reopen.

The appellate decision affirmed the trial court’s ruling denying the husband’s motion for relief from judgment (brought under Wis. Stat. section 806.07) in which he claimed the wife had failed to disclose her true financial condition before the parties settled their divorce. The factual and legal issues involved the wife’s 401K and the alleged disparity between its true value and the value used for settlement (a difference that appeared to be about $169,000).

The mediator was called as a witness to shed light on the account information exchanged (or not exchanged) during the mediation.

The legal issues on appeal are unremarkable. However, the decision contains the following paragraph:

The mediator testified that he did not recall if Hahn provided him with an updated financial disclosure statement at the mediation, and he only had the materials provided to him on October 2, 2019, the day before mediation. The mediator had almost no notes from the mediation, and he did not recall many of the details of the mediation. However, he did recall spending most of the time addressing the parties’ disputes over the disposition of personal property.¹

Mediator testimony and the admissibility of communication in mediation are governed by Wis. Stat. section 904.085(3) which states:

(3) Inadmissibility.

(a)Except as provided under sub. (4), no oral or written communication relating to a dispute in mediation made or presented in mediation by the mediator or a party is admissible in evidence or subject to discovery or compulsory process in any judicial or administrative proceeding.

…

(b)Except as provided under sub. (4), no mediator may be subpoenaed or otherwise compelled to disclose any oral or written communication relating to a dispute in mediation made or presented in mediation by the mediator or a party or to render an opinion about the parties, the dispute whose resolution is attempted by mediation or any other aspect of the mediation.

The wife subpoenaed the mediator.The parties entered a stipulation citing to Wis. Stat. section 904.085(4), and invoked the exception mentioning Wis. Stat. section 767.405(14)(c). The latter statute requires parents to consent to investigation for a custody and placement study where the person investigating also provided mediation.

However, the mediation provided in Higgins was not Family Court Services custody and placement mediation that is required for this narrow exception. The stipulation also says the parties “waive the inadmissibility of communications in mediation.”

The judge accepted the stipulation, the mediator did not object and did testify about the issues of concern in husband’s motion. Neither of the parties raised section 904.085 on appeal, therefore the question of the applicability of the statute was not addressed by the appellate court.

Mediators and the Protective Shield

Section 904.085 affirms and enshrines the important principle of insulating mediation from the court process. The purpose of the statute is found in section (1): “The purpose of this section is to encourage the candor and cooperation of disputing parties, to the end that disputes may be quickly, fairly and voluntarily settled.”

Once a mediator is on the stand, that purpose is breached.

The mediation statute provides a protective shield. Mediations often occur in a “shuttle” format where the mediator alternates talking to each party and their lawyer. Fear that statements and conduct in mediation could be eventually heard by the other party or by the judge almost certainly would dampen the candid communication that takes place and is often needed for settlement.

The Judicial Council Note accompanying the statute confirms this protective nature:

The purpose of the rule is to encourage the parties to explore facilitated settlement of disputes without fear that their claims or defenses will be compromised if mediation fails and the dispute is later litigated.

Mediation and court play different and important roles in the resolution of disputes. The law requires their separation. As a practicing mediator, I believe the value and integrity of mediation depends on it.

This article was originally published on the State Bar of Wisconsin’s Dispute Resolution Blog. Visit the State Bar sections or the Dispute Resolution Section web pages to learn more about the benefits of section membership.

Endnote

¹ Higgins v. Hahn, 2020AP2114-FT ¶5.