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					Michael Curry, Attorney-Mediator
Mediation News

November, 2002
-- Featured Article
-- Mediation Confidentiality - The Required Disclosure Exception
-- Enforcement of a Family Law MSA
-- Effective Negotiation Seminar
-- Negotiation Principle #32
-- Feedback


I hope you find this issue of Mediation News useful. Past issues of Mediation News are archived
at www.mcmediate.com. Please contact me with any suggestions for future issues. Thank you
for your interest!


Mediation Confidentiality - The Required Disclosure Exception
The Civil Practice and Remedies Code Ch. 154 (the "ADR Act") provides that communications
of ADR participants are confidential, not subject to disclosure, and not available for use as
evidence. See '154.073(a). A participant may not be required to testify about or disclose
confidential "information or data relating to or arising out of the matter in dispute." '154.073(b).
[The full text of the ADR Act is available in the mcmediate.com library and may be accessed by
clicking on "library" below.]

The ADR Act provides exceptions to the rule of mediation confidentiality. This article deals
the exception to confidentiality in '154.073 (e):

       If this section conflicts with other legal requirements
       for disclosure of communications, records, or materials,
       the issue of confidentiality may be presented to the
       court having jurisdiction of the proceedings to
       determine, in camera, whether the facts, circumstances,
       and context of the communications or materials sought
       to be disclosed warrant a protective order of the court or
       whether the communications or materials are subject to disclosure.

This provision was analyzed extensively in Avary v. Bank of America, 72 S.W.3rd 779 (Tex.
App. - Dallas 2002, no writ). Avary involved a mediation in a wrongful death suit. The decedent,
Mr. Bourgeois, was survived by his parents, wife and child, and by two
children from a previous marriage to Ms. Avary. The Bank of America was his estates's executor.
The mediation resulted in a settlement between all of the plaintiffs and the defendant. Subsequent
to the mediation, Avary, as guardian, brought this suit against the executor alleging that during
the mediation the executor (who was not in the same room at mediation as Avary) breached its
fiduciary duty to her children by rejecting an offer made by the defendant to the estate that would
have resulted in her sons receiving more money. Avary sought to elicit testimony
from the bank, the bank's mediation attorney, and others concerning the mediation negotiations.
After a limited in camera hearing the trial court partially granted the request.

On appeal the Court held that the bank, as executor of the estate, had a legal duty to disclose
material information ( i.e. settlement offers) affecting the beneficiaries' rights and that this duty
constituted a "legal requirement for disclosure" which conflicted with ADR Act '154.073. In
ordering the discovery from the Bank and the Bank's attorney the Court held that
since Avary's claim was based upon a new and independent tort committed during the mediation
process which encompassed a duty of disclosure it was within the discretion of the trial court to
order disclosure. Among the factors mentioned by the Court was the fact that Avary was not
seeking additional compensation from the wrongful death defendants and did not seek to disturb
the settlement of the underlying case.

The Court did not rule on Avary's request for the deposition of other participants in the mediation
because the trial judge improperly failed to conduct an in camera hearing on those requests. The
Court noted that a blanket prohibition of those discovery requests without a hearing to consider
the "facts, circumstances and context" of the communications was improper. The
Court did emphasize that there may be other privileges, such as the attorney-client privilege, or
procedural objections that might apply.

The Court's thoughtful opinion goes to great lengths to balance the interests served by mediation

confidentiality with the right of a party to seek redress for an independent tort committed during
the mediation. Important to the Court was the fact that the Bank had a fiduciary obligation of full
disclosure which included its conduct at the mediation. This duty constituted the "other legal
requirement" mentioned by the statute. The analyses gets more difficult, however, when the
Court entertains the possibility that others at the mediation might be compelled to testify.
these other parties presumably have knowledge of facts relevant to the breach of fiduciary duty
claim, they themselves are under no common law duty of full disclosure. Perhaps more
important to understanding the Court's opinion is its emphasis on the fact that the testimony
sought did not deal with the underlying dispute (or even an aggravation of it) but rather with a
new independent claim that occurred during the mediation and that did not exist before. The
Court was
careful to state that its holding was limited to the facts of the case and it was not considering the
question of whether a mediator could be compelled to respond to discovery.
Library >> http://www.mcmediate.com/pages/649193/index.htm

Enforcement of a Family Law MSA
October's Mediation News noted that a mediation settlement agreement (MSA) in family law
cases must contain statutorily mandated language to be binding. Specifically, the MSA must
prominently state that the agreement is not subject to revocation; and it must
be signed by each party and their attorneys. See TEX. FAM. CODE '' 6.602(b), 153.007(d).
However, if those ground-rules are met, the party seeking enforcement is entitled to a procedural
shortcut - unlike non-family law cases a separate claim for breach of contract is not
required. A party may ask the court for a judgment on the agreement. Compliance with Rule 11 is
not even required. TEX. FAM. CODE ' 6.602(c). In Boyd v. Boyd, 67 S.W.3rd 398 (Tex. Civ.
App. - Fort Worth 2002, no writ), the Court held that notwithstanding Family Code
' 6.602(c), the trial court is entitled to refuse to enforce the agreement when, for example, one
spouse failed to disclose substantial community assets despite a representation to the contrary. In
other words, under the Boyd opinion while the Family Code may provide a procedural
"shortcut," defenses such as fraud in the inducement which would be relevant in the
enforcement of a breach of contract action in a non-family law case remain available for
consideration by the trial court in a family law case. Compare the opinion in Cayan v. Cayan, 38
S.W. 3d 161 (Tex. App. -- Houston [14th Dist. ]2000, pet. denied) which held that a trial court
did not have the authority to review a mediated settlement agreement to determine whether
the property division set out in the agreement was "just and right."

October Newsletter >> http://www.mcmediate.com/pages/649191/index.htm

Effective Negotiation Seminar
CLE Online offers a seminar entitled "Effective Negotiation and Mediation Advocacy." I serve as
the instructor.

This seminar is accredited for 3.0 hours of participatory CLE credit by the MCLE Committees of
the State Bar of Texas and the State Bar of California. (These are not self-study credits, but rather
'participatory' credits as you would receive for attending a traditional, live CLE seminar.)

This seminar is also accredited for 3.0 hours of CLE credit by the Texas Board of Legal
Specialization for certification and recertification continuing legal education requirements for
attorneys and legal assistants in the speciality fields of: Civil Appellate Law (3.0), Civil Trial
Law (3.0), Personal Injury Trial Law (3.0),Criminal Law (3.0), and Family Law (3.0).

I think you will find online continuing legal education convenient and affordable. When you get
to the CLE Online site, click on Seminars.

CLEonline >> http://www.cleonline.com/
Negotiation Principle #32
Negotiation Principle #32 states that the opposing party may take an offer even though it is not
what they want if it resembles what they want. As part of our Bring Negotiations to Life series,
Mediation News is proud to share with you the following dramatization of this principle.

Click on the link below and then move the cursor (representing your settlement offer) slowly
toward the opposing party, depicted in this exercise as a rabbit.

Negotiation Dramatization >> http://www.esu.lt/andrius/10/go.swf

I am committed to providing you with the best service possible. Accordingly, I welcome your
comments and suggestions about any and every aspect of the mediation experience. You may
call me or email me at the contact information set out below.

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impossible, because another mediation may have canceled.

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Contact Information
email: mcmediate@msn.com
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