Mediation Confidentiality Questioned

Law Firm Can’t Subpoena Federal Mediator in Legal Malpractice Suit

The Recorder

August 16, 2011

A malpractice suit has resulted in a battle over whether the mediator can be deposed to divulge confidential information that was conveyed during the mediation session.  The malpractice suit stems from the Polymer Dynamics Inc. v. Bayer Corp. decision, which resulted in a $12.5 million verdict for the plaintiff.  Both sides filed appeals but ultimately lost although the 3rd Circuit ordered a recalculation of damages.

Polymer Dynamic was hoping for a $500 million award.  Now, Polymer Dynamic argues in its malpractice case that their attorneys at McKissock & Hoffman failed to advise them to accept the $25 million settlement offered during an appellate mediation which the 3rd Circuit’s chief mediator allegedly conveyed.  McKissock & Hoffman served a subpoena on the mediator Joesph Torregrossa who would testify that no such offer was ever made.  However, the court ultimately held that the mediator could not be deposed.

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