Mediation Pitfalls - Dialog Between Parent Attorneys
Sonja Kerr and Pete Wright

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Sonja: I saw your note about mediation - I have some concerns. Do you see school lawyers trying to use mediation as a discovery tool? Here in Minnesota, one of the school lawyers publicly announced that this is one purpose of mediation.

After hearing this, we are gun-shy about having our parents go to mediation without an attorney. When parents go to mediation alone, I try to have a good session with them first. This way, they are very clear about the purpose of mediation and what they can and cannot prevail on through mediation.

Pete: As you know, confidentiality is crucial to the success of mediation. Discussions and admissions by the parties must be confidential. Without this confidentiality, the real purpose of mediation would be to gain tactical advantage in subsequent litigation.

Most parents don't realize that in law, settlement discussions are usually confidential. If the case is not settled, information from settlement discussions may not be used or disclosed in a subsequent trial.

If lawyers try to use confidential information obtained in mediation or in settlement discussions, this could lead to adverse consequences if the case ends up in Court.

Sonja: Some advocates are getting nervous about mediation too. These advocates accompanied parents to mediation. The school district is bringing their lawyers.

At that point, the parent who - has no lawyer - starts looking to the advocate for legal advice. When this happens, I recommend that the advocate ask the school lawyer to leave the mediation session - or at least sit in an adjoining room.

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