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in that mediation participants may generally prefer not to waive | | their mediation privilege rights. However, there may be | | situations in which one or more parties may wish to be freed | | from the burden of privilege, and the waiver provision permits | | that possibility. See, e.g., Olam v. Congress Mortgage Co., 68 | | F.Supp.2d 1110, 1131-33 (N.D. Cal. 1999). |
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| | | Significantly, these provisions differ from the attorney- | | client privilege in that the mediation privilege does not | | permit waiver to be implied by conduct. See Michael H. Graham, | | Handbook of Federal Evidence Section 511.1 (4th ed. 1996). The | | rationale for requiring explicit waiver is to safeguard | | against the possibility of inadvertent waiver, such as through | | the often salutary practice of parties discussing their | | dispute and mediation with friends and relatives. In contrast | | to these settings, there is a sense of formality and awareness | | of legal rights in all of the proceedings to which the | | privilege may be waived if the waiver is oral. They generally | | are conducted on the record, easing the difficulties of | | establishing what was said. |
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| | | Read together with Section 4, the waiver operates as follows: |
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| | | For testimony about mediation communications made by a party, | | all parties are the holders and therefore all parties must | | waive the privilege before a party or nonparty participant may | | testify or provide evidence; if that testimony is to be | | provided by a mediator, all parties and the mediator must | | waive the privilege. |
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| | | For testimony about mediation communications that are made by | | the mediator, both the parties and the mediator are holders of | | the privilege, and therefore both the parties and the mediator | | must waive the privilege before a party, mediator, or nonparty | | participant may testify or provide evidence of a mediator's | | mediation communications. |
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| | | For testimony about mediation communications that are made by | | a nonparty participant, both the parties and the nonparty | | participants are holders of the privilege and therefore both | | the parties and the nonparty participant must waive before a | | party or nonparty participant may testify; if that testimony | | is to be offered through the mediator, the mediator must also | | waive. |
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| | | Earlier drafts included provisions that permitted waiver by | | conduct, which is common among communications privileges. | | However, the Drafting Committees deleted those provisions | | because of concerns that mediators and parties unfamiliar with | | the statutory environment might waive their privilege rights | | inadvertently. That created the anomalous situation of | | permitting the opportunity for one party to blurt out | | potentially damaging |
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