The Mediation Recording and the New Partner
The parties signed a collaborative participation agreement and have a mediation scheduled in five days on custody, parenting time, and the marital home. The client, Ms. Rivera, wants to bring her new boyfriend to mediation 'for support.' She also gives the paralegal a secret audio recording of a conversation with Mr. Rivera about the children's schedule and asks the paralegal to listen to it and summarize the 'lies.' Ms. Rivera wants to email a settlement proposal directly to Mr. Rivera, who is represented by counsel. She also asks whether she can tell the mediator that she will 'go scorched earth' in litigation if he does not agree. The collaborative agreement says the lawyers must withdraw if either party files a contested court case. The supervising attorney is out of the office until tomorrow.
1. Can Ms. Rivera bring her boyfriend to mediation, and can the paralegal summarize the secret recording?
Read the worked answer
Attendance at mediation depends on the mediation agreement, the mediator's rules, and the court order. Many mediations limit attendance to parties and counsel; a boyfriend is not a party and may undermine candor. The paralegal should not agree on her own; she should ask the attorney and mediator.
The secret recording raises serious issues: state law may require one-party or all-party consent, and mediation communications may be confidential or privileged. The paralegal should not listen to or summarize the recording without attorney guidance, because doing so may invade privacy, violate wiretap law, or create discoverable material. The paralegal should preserve the file, document how it was received, and tell the attorney immediately. She may prepare a mediation summary using court documents and properly obtained evidence.
2. Ms. Rivera wants to email Mr. Rivera directly and threaten 'scorched earth' litigation. What should the paralegal do?
Read the worked answer
Mr. Rivera is represented, so direct communication about the case by the client is unwise and may violate Rule 4.2 if the paralegal or attorney communicates; the client has a right to communicate, but the paralegal should not facilitate case-related contact. The threat of scorched-earth litigation also conflicts with the collaborative participation agreement. The agreement likely disqualifies both collaborative lawyers if a party files contested litigation.
The paralegal should explain that she cannot send the email or give advice, notify the attorney, and document the request. She can offer to draft a respectful settlement proposal for attorney review that focuses on the children's needs. If Ms. Rivera insists on communicating, the attorney should counsel her about the risks. The paralegal should not transmit confidential information to opposing counsel without authorization.
3. What should the paralegal do to prepare for mediation within the scope of the role?
Read the worked answer
The paralegal should assemble the mediation notebook: the participation agreement, pleadings, financial affidavits, custody schedule, school and medical records, property inventory, and prior settlement offers. She can prepare a chronology and a draft mediation statement for attorney review, identify unresolved issues, and confirm logistics with the mediator.
She should not give legal advice, predict outcomes, or negotiate on the client's behalf. She should flag the recording and the boyfriend issue to the attorney and mediator before the session. She should also prepare a confidentiality reminder and a list of documents the client must bring. After mediation, she can draft a memorandum of understanding for attorney review, but the attorney must explain the agreement and ensure it is enforceable.