904.085 Communications in mediation.

(1) Purpose. The purpose of this section is to encourage the candor and cooperation of disputing parties, to the end that disputes may be quickly, fairly and voluntarily settled.

(2) Definitions. In this section:

(a) “Mediation" means mediation under s. 93.50 (3), conciliation under s. 111.54, mediation under s. 111.11, 111.70 (4) (cg) or (cm) 3. or 111.87, mediation under s. 115.797, negotiation under s. 289.33 (9), mediation under ch. 655 or s. 767.405, or any similar statutory, contractual or court-referred process facilitating the voluntary resolution of disputes. “Mediation" does not include binding arbitration or appraisal.

(b) “Mediator" means the neutral facilitator in mediation, its agents and employees.

(c) “Party" means a participant in mediation, personally or by an attorney, guardian, guardian ad litem or other representative, regardless of whether such person is a party to an action or proceeding whose resolution is attempted through mediation.

(3) Inadmissibility.

(a) Except as provided under sub. (4), no oral or written communication relating to a dispute in mediation made or presented in mediation by the mediator or a party is admissible in evidence or subject to discovery or compulsory process in any judicial or administrative proceeding. Any communication that is not admissible in evidence or not subject to discovery or compulsory process under this paragraph is not a public record under subch. II of ch. 19.

(b) Except as provided under sub. (4), no mediator may be subpoenaed or otherwise compelled to disclose any oral or written communication relating to a dispute in mediation made or presented in mediation by the mediator or a party or to render an opinion about the parties, the dispute whose resolution is attempted by mediation or any other aspect of the mediation.

(4) Exceptions.

(a) Subsection (3) does not apply to any written agreement, stipulation or settlement made between 2 or more parties during or pursuant to mediation.

(b) Subsection (3) does not apply if the parties stipulate that the mediator may investigate the parties under s. 767.405 (14) (c).

(c) Subsection (3) (a) does not prohibit the admission of evidence otherwise discovered, although the evidence was presented in the course of mediation.

(d) A mediator reporting child or unborn child abuse under s. 48.981, reporting a threat of violence in or targeted at a school under s. 175.32, or reporting nonidentifying information for statistical, research, or educational purposes does not violate this section.

(e) In an action or proceeding distinct from the dispute whose settlement is attempted through mediation, the court may admit evidence otherwise barred by this section if, after an in camera hearing, it determines that admission is necessary to prevent a manifest injustice of sufficient magnitude to outweigh the importance of protecting the principle of confidentiality in mediation proceedings generally.

History: Sup. Ct. Order No. 93-03, 179 Wis. 2d xv (1993); 1995 a. 227; 1997 a. 59, 164, 292; 2005 a. 443 s. 265; Sup. Ct. Order No. 09-12, 2010 WI 31, 323 Wis. 2d xvii; 2011 a. 32; 2017 a. 143.

Judicial Council Note, 1993: This section creates a rule of inadmissibility for communications presented in mediation. This rule can be waived by stipulation of the parties only in narrow circumstances [see sub. (4) (b)] because the possibility of being called as a witness impairs the mediator in the performance of the neutral facilitation role. The purpose of the rule is to encourage the parties to explore facilitated settlement of disputes without fear that their claims or defenses will be compromised if mediation fails and the dispute is later litigated.

The focus of sub. (3) (a) is on the courts and on judicial proceedings. It directs the courts not to admit certain communications into evidence and excludes those same communications from discovery. The statute is applied when the communications are sought to be introduced or discovered in court, not when they are originally made during mediation. Dyer v. Waste Management of Wisconsin, Inc. 2008 WI App 128, 313 Wis. 2d 803, 758 N.W.2d 167, 07-1400.

“Otherwise discovered" in sub. (4) (c) means discovered outside of mediation, not discovered outside the bounds of formal civil discovery. By its terms, sub. (4) (c) is intended to prevent a party from making pre-existing, unprivileged information privileged, simply by communicating in the course of a mediation. Dyer v. Waste Management of Wisconsin, Inc. 2008 WI App 128, 313 Wis. 2d 803, 758 N.W.2d 167, 07-1400.

Sounding the Depths of Wisconsin's Mediation Privilege. La Fave. Wis. Law. July/Aug. 2016.