Changes in Washington Practice Report (#15)/ Use of a motion in limine to exclude mediation evidence

April 9, 2014

Washington State LawThis is installment #15 in a continuing series of Changes in Washington Practice Reports.

Mediation is becoming a much more common approach to the possible settlement of disputes. However, if an agreement cannot be reached through mediation, the result may be a lawsuit.

Under such conditions, either party may seek to exclude all mediation evidence from the subsequent trial.

Typically, a motion in limine is usually made to the Court at the beginning of a jury trial for a protective order to exclude any information from mediation efforts from being heard by the jury.

A motion in limine needs to describe the evidence that is to be excluded. Otherwise, the Court cannot adequately evaluate whether or not to grant the motion.

When the results of mediation are to be excluded, it is important for an attorney to have adequate information about the mediation to present the motion. Therefore, one aspect of mediation should always be to prepare a strategy to bring a subsequent motion in limine.

A sample of such a motion has been included by Finley and McGuire in the 2013-2014 edition of Washington Motions in Limine, volume 30 of Washington Practice (section 9:64).

This sample starts out by defining the scope of the order being sought with respect to “any mediation that was previously conducted in this matter….”

The justification for the motion is that such evidence “is irrelevant and will create a substantial danger of undue prejudice….”

A “preliminary statement” describes the underlying action (an accident) and states that a mediation has taken place.

The motion then describes the basis on which the Court can choose to exclude the evidence, and arguments why a favorable ruling should be made.

The opposing party may choose to argue why all or some aspects of the mediation process should be admitted by the Court.

Such an argument might be made on the basis that the evidence was already available through other means and was not an essential part of the mediation discussion. Or that the mediation records are inadequate to support a conclusion that the evidence was a subject of the mediation.

Attorneys can search for needed resource materials by reviewing the individual volumes of Washington Practice, or by starting with the summaries and search strategies available in Methods of Practice.

For additional information regarding the extracts, summaries and other legal resource materials to be found in Methods of Practice, refer to volumes 1 to 1C of Washington Practice, by Cheryl Mitchell and Ferd Mitchell of Mitchell Law Office.