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Subpoenas in Mediation?

An interesting issue was raised recently about the use of subpoenas in Mediation.  Normally there is no formal discovery in Mediation type processes as the parties agree up front to voluntarily provide all relevant documents.  The issue was raised in a case where there were trust issues such that one party had a desire, as I understood it, to subpoena documents from 3rd parties to ensure full and accurate documents were provided.  My guess is that this would be involving financial records from banks or investment brokers.

Some people questioned whether Alternative Dispute Resolution can work where there is a lack of trust.  My own feeling is that Mediation is a process for managing conflict, and therefore lack of trust is a normal issue we need to deal with in Mediation.

From that perspective, I think use of subpoenas can be entirely appropriate when needed.  The subpoenas help both parties feel more comfortable that all requested information has been provided.  What is different about the use of subpoenas in Mediation is that the use of them should be discussed openly and agreed to by both parties.  It might even be best if the subpoenas are signed and issued by both sides jointly (or they might use joint disclosure authorization forms as well).  If the attorneys start with joint voluntary document disclosures followed by subpoenas, this might even help the parties to build trust when the subpoenas do not reveal any more information than was already disclosed.

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