Two cases on the same issue.
In Olson v. Desserts on the Blvd., LLC, 2013 WL 5446922 (E.D.Mo. 2013), defendants opposed a motion to amend a complaint, arguing plaintiffs waited too long to amend. Defendants relied in large part on the fact that plaintiffs allegedly [had] learned the facts necessary to amend the complaint in a mediation that took place long before they sought leave to amend. The court rejected defendants’ argument and granted leave to amend, ruling that the factual statements in the mediation were too vague and therefore did not render the amendment untimely.
In Lemmons v. Ace Hardware Corp., 2013 WL 5945073 (N.D.Cal. 2013), the defendant sought to amend its answer, arguing that it [had only] first learned the [necessary] facts supporting the proposed amendment in a recent mediation. The court granted the motion, relying on the mediation as demonstrating the recent vintage of defendant’s factual discovery.
It is important to exchange as much information as possible both before and during a mediation; in my experience, the more information, the better the chances of settlement. But, these cases show that there can be consequences in the litigation to that exchange of information.
It is interesting that the mediation privilege was not an issue in either case. Arguably, no one should be able to point to facts exchanged in a mediation for any purpose, because all such communications are privileged by statute (and usually under the mediation agreement, as well). One cannot tell from the published opinions whether the parties failed to raise the issue, or whether the court, in the interest of reaching the “equitable” result, chose to ignore it.