However, in the more remote situation in which these |
exceptions would not be applicable, and the mediator's |
testimony is sought under a claim that the privilege has been |
lost by virtue of the mediator's failure to disclose a |
conflict of interest, the notice issue becomes more |
problematic. It may be expected that the mediator would give |
notice to the other mediation participants who may be affected |
by such a request. It may also be expected under usual customs |
and practices that the party seeking the privileged testimony |
would move the matter before a court and provide notice to all |
interested persons who would have the right to assert the |
privilege. For a challenge to the mediation privilege, those |
interested parties would be the mediator, parties, and |
nonparty participants. In any event, mediation participants |
are advised to consider including notice provisions in their |
agreements to mediate that call for participants who receive |
subpoenas for privileged testimony to provide notice to the |
other participants of such a request. |