Mediators and other Rule 114 professionals often note that ‘everything said’ in a mediation or ENE session is confidential unless agreed to in writing.  This is especially important for Minnesota Family Law attorneys.  They generally encourage their clients to be honest and to propose and consider creative solutions to resolve their cases.  These offers of compromise are subject to confidentiality provisions of Rule 408 but there are pitfalls and issues to consider.

While Rule 408 of the Minnesota Rules of Evidence, regarding Compromise and Offers of Compromise, states :

Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount.  Evidence of conduct or statements made in compromise negotiations is likewise not admissible.  This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations.  This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

The Minnesota Court of Appeals, in an unpublished decision, (see //, opinion A12-390) has noted that Rule 408 has previously been narrowly construed so as to prohibit admission of evidence only when (1) the evidence pertains to a compromise on “a claim which was disputed as to either validity or amount”; (2) the evidence is offered to “prove liability for or invalidity of the claim or its amount”; and (3) the evidence is not offered for another legitimate purpose. C.J. Duffey Paper Co., 588 N.W.2d at 524.

Because this rule is narrowly construed, the Court of Appeals observed in the above referenced unpublished case that:   “… narrow application of rule 408 reaches only statements made during settlement discussions concerning the disputed validity or value of a claim. It would not apply…to statements the parties made about …motivation”.

NOTE: Mediators (unless mandated reporters) are still not testifying on anyone’s behalf!  However, it is important to note that just because a statement was made during a mediation session by one party in front of the other does not mean that the other party cannot attempt to use that statement in a court proceeding –so long as it does not violate Rule 408.