A Kansas appellate court concluded that the trial court erred in permitting a mediator to testify that an oral agreement had been reached in mediation and what the terms of the purported agreement were.  The appellate court noted that several states, including Louisiana, Ohio, Wisconsin, Kentucky, Connecticut, Iowa and Wyoming, have express exceptions allowing mediators to testify about disputed agreements, but that Kansas does not have such an exception.  Thus, the general rule of mediation confidentiality applies as long as any party objects to admitting mediation communications, which occurred in this case.  Without the mediator’s testimony there was not sufficient evidence of the terms to enforce any agreement.  The appellate court urged parties to put settlement agreements in writing, citing a law review with a form checklist and term sheet.

Baraban v. Hammonds, No. 105,993 (Kan. Ct. App., October 18, 2013).

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