The New Mexico Court of Appeals has recently issued the first reported decision applying the New Mexico Mediation Procedures Act, NMSA §§ 44-7B-1 et seq.* Warner v. Calvert, et al., 2011-NMCA-028, cert. not applied for. The Court concluded that a non-party participant to a mediation could be admitted as an expert in a subsequent trail, after mediation fell through, although the non-party participant's valuation report could not be admitted .
In Warner, the parties to a dispute concerning the valuation of a business agreed in a signed writing, during mediation, to hire a an expert--Judith Wagner--to provide a valuation report "for the purposes of mediation." The Court concluded Ms. Wagner was a "nonparty participant" under § 44-7B-2(F) because hired by the parties "to assist the mediation part[ies] with evaluating, considering or generating offers of settlement." Id.
The Court concluded Ms. Wagner was not precluded from serving as an expert witness at trial because the MPA itself "does not ... contain any general prohibitions against nonparty participants testifying at trial," while the parties' agreement itself expressly contemplated that she might testify at trial.
However, the Court did agree Ms. Wagner's original valuation could not be admitted into evidence, because it was a confidential mediation communication under § 44-7B-4, to which no exception under §44-7B-5 applied. Accordingly, although she could testify to the facts underlying her report and her testify would presumably mimic her report, she could not refer to the report itself.
If you are interested in arbitration, mediation, or contract ALJ services, please contact Pilar Vaile, P.C. at (505) 247-0802 or info@pilarvailepc.com.
NOTES:
* The Court issued an earlier decision referring to the Mediation Procedures Act, Carlsbad Hotels Assocs. LLC v. Patterson, 2009-NMCA-005, but that decision concerned a settlement conference that occurred prior to the enactment of the MPA, so the Act did not control the outcome of the case. Carlsbad Hotels is nonetheless very illuminating on the issue of good or bad faith bargaining in mediation, as discussed in another blog.
