Confidentiality and Privilege

(a) Definitions. As used in this Rule on confidentiality and privilege, “Mediation Communication” means an oral or written statement, or nonverbal conduct intended to make an assertion, by or to a Mediation Participant made during the course of the mediation, whether during a Mediation Conference or prior to a mediation if made in furtherance of a mediation; “Mediation Participant” means a Party or any person who attends a mediation whether in person or by telephone, videoconference, or other electronic means; “Party” means a person participating in a mediation directly or through a designated representative, who is a named party, a real party in interest, or who would be a named party or real party in interest if an action or third-party complaint relating to the subject matter of the mediation were filed in a court of law; and “Other Proceeding” means any adjudicative process, including related discovery proceedings. (b) Confidential Mediation Communications. Except as provided in this section, all Mediation Communications are confidential and the mediator and the Mediation Participants shall not disclose any Mediation Communication outside of the mediation, and no person may introduce in any Other Proceeding evidence pertaining to any aspect of the mediation process.

However, information contained in a Mediation Communication which is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery merely because of its disclosure or use in mediation. (c) Evidence Rules and Laws. Without limiting subsection (b) and subject to any exceptions in subsection (d), Rule 408 of the Federal Rules of Evidence and any applicable federal or Michigan statute, rule, common law, or judicial precedent relating to the privileged nature of settlement discussions or Mediation Communications apply. (d) Exceptions to Confidentiality.

Notwithstanding subsections (b) and (c), upon order of the Court, Mediation Communications may be revealed in the following situations: (1) Settlement agreements. Terms of a signed, written agreement reached during or as a result of a mediation, unless the Parties agree that those terms are to be kept confidential, including Mediation Communications which are relevant and material to a determination of insurance coverage for amounts at issue in the mediated settlement agreement; 43 (2) Waiver. Mediation Communications for which the confidentiality or privilege against disclosure has been waived by all Parties in writing or on the record in Other Proceedings or by an individual Mediation Participant who discloses a Mediation Communication, but only to the extent necessary for another Mediation Participant to respond to the disclosure; (3) Malpractice claims. Mediation Communications relevant and material to a Party’s claim of legal malpractice or other tort committed during the mediation concerning the actions of a Party’s attorney or other agent involved in the mediation.

(4) Duties to Report/Disclose. Nothing in this Rule or the Bankruptcy ADR Program shall impair, impede, limit, restrict or otherwise be construed as inconsistent with, in any way, the duties, obligations, and/or responsibilities of the trustee serving in a case before the Court. (e) Required disclosures. A mediator may disclose information from a Mediation Communication to a law enforcement agency or similar authority if required by law or if the mediator has a reasonable belief such disclosure will prevent a Mediation Participant from committing a criminal or illegal act likely to result in death or serious bodily harm.

(f) Attorneys, agents, etc. This R ule shall not prevent a Party from revealing Mediation Communications to that Party’s attorney, agent, employee or partner for an artificial entity, such as a corporation, partnership or limited liability company. (g) Preservation of Privileges. The disclosure by a Mediation Participant of privileged information (e.g., attorney/client, doctor/patient, etc.) in a Mediation Communication to the mediator, or another Mediation Participant does not waive or otherwise adversely affect the privileged nature of the information. (h) Mediation Participants shall not: (1) call or subpoena the mediator as a witness or expert in any proceeding relating to the mediation, to testify as to the subject matter of the mediation or any thoughts or impressions which the mediator may have about the parties or merits of the dispute; or (2) subpoena or otherwise seek discovery of any notes, documents or other material prepared by the mediator in the course of or in connection with the mediation; or (3) offer into evidence (or reveal in any argument) any statements, views, or opinions of the mediator.

(i) Communications with Court Personnel. Nothing in this Rule shall be construed to prevent Parties, counsel or mediators from responding in absolute confidentiality to inquiries or surveys by persons authorized by this Court to evaluate the Program. 44 LBR 9019-13: Mediation Procedure (a) Initial Telephone Conference. As soon as practicable after notification of appointment, the mediator shall conduct a telephone conference with counsel for the parties and any unrepresented parties to discuss the nature of the matter, the expectations of the parties concerning the scheduling and nature of the mediation process, and anything else which will facilitate the mediation process.

(b) Mediation Conference Scheduling. Within 14 days of the telephonic conference, the mediator shall give notice to the parties of the time and place for the mediation, which shall be held at a time and location convenient to the parties. (c) Mediation Summaries. At the request of the mediator, no later than seven days before the date of the Mediation Conference, each party shall submit a written Mediation Statement directly to the mediator and serve copies on all other parties.

Mediation Summaries shall not exceed 15 pages (excluding exhibits and attachments). While Mediation Summaries may include any useful information, it is helpful to: (1) identify the person(s), in addition to counsel, who will attend the session as representative of the party with decision-making authority; (2) describe briefly the substance of the dispute; (3) identify any legal or factual issues whose early resolution might appreciably reduce the scope of the dispute or contribute significantly to settlement; (4) identify any outstanding discovery which could contribute most to equipping the parties for meaningful settlement discussions; (5) set forth the history of past settlement discussions, including disclosure of prior and any presently outstanding offers and demands; (6) make an estimate of the cost and time to be expended for further discovery, pretrial motions, expert witnesses and trial (this information may be included in a separate, confidential communication between the party and the mediator only); and (7) indicate presently scheduled dates for further status conferences, pretrial conferences, trial or otherwise. (d) Summaries Not to Be Filed with Court. The written Mediation Summaries shall not be filed with or disclosed to the Court and the Court shall not have access to them.

(e) Identification of Mediation Participants. Parties may identify in their Mediation Summaries persons connected to a party opponent (including a representative of a party opponent’s insurance carrier) whose presence at the Mediation Conference could make it more productive; the fact a person has been so identified, shall not, by itself, result in an order compelling that person to attend the Mediation Conference. 45 (f) Documents. Parties shall attach to their written Mediation Summaries copies of any documents which would materially advance the purposes of the Mediation Conference.

(g) Confidential Communications with Mediator. In the mediator’s discretion, the mediator may meet with any party or confer with them or their representatives privately and confidentially.