Can a mediator be called as a witness? One of the beauties of mediation is its confidential process and without prejudice nature which simply means; whatever is said or done at a mediation, it cannot be used or referred to in any future court proceedings.
Which would be the case if the parties do not settle at mediation, therefore if they have to go onto court all they can say to the trial judge is, we went to mediation and it was not successful. They cannot for example refer to what a party may, may not have said, who hampered the process and so forth. Well I suppose they can and perhaps they do, but it is inadmissible!
Tied into this confidentiality is; can a mediator be called as a witness, the answer is no they cannot, or that is what we all thought as mediators until recently! In a recent case known as the Farm Assist Case the mediator who conducted that mediation was in fact subpoenaed and was called to give testimony.
Can a mediator be called as a witness – Possibly?
Well it looks like this landmark case has made it clear that a mediator can be called as a witness, having said that it was a one off, and generally mediators are not called to give testimony, however that does not mean it will not happen again?!
I am not sure what the benefits of calling a mediator to act as a witness would be, for example, if I was called to give witness, I would not unless subpoenaed to do so of course.
At the end of each mediation I destroy all my notes so I would have nothing to refresh my memory with other than any mental notes I had made at the time.
Given any lapse in time which there quite usually would be, how many other mediations would I have conducted since then, how could I be accurate in the testimony I was giving, being forced to give?
I simply just would not be able to remember, I would answer any questions as honestly as possible and make it clear which questions I could not answer due to having no clear recollection.