The Foxgate Case – Good Faith & Confidentiality Self-Quiz










Eddie and Freddy have been at odds for quite some time. After Freddy sues Eddie, the judge orders them to enter into mediation proceedings before the case goes to trial. As a result of mediation, the two reach a settlement agreement. The mediator, eager to receive more referrals from the judge (really, from the judge’s clerk) immediately runs to the courthouse to tell the judge. What is the BIGGEST problem?
Choice 1 The judge should not know the mediator’s identity.
Choice 2 The settlement agreement has not yet been finalized.
Choice 3 The settlement agreement has not yet been carried out.
Choice 4 The mediator cannot disclose the agreement without the parties’ consent.
Sam and Sage are embroiled in a bitter dispute over ownership of a food processing plant. When Sage sues Sam, seeking sole ownership, the court mandates that the parties attempt to resolve their differences through mediation before continuing on to trial. During mediation, Sam, who is quite old, regularly fails to show up at the agreed upon time, or shows up unprepared. When confronted about this, Sam blames old age. Sage, however, believes that Sam is not acting in good faith. May Sage report Sam’s conduct to the court?
Choice 1 YES, because a party’s bad faith conduct may also be reported to the court.
Choice 2 YES, because a party’s bad faith conduct may be reported to the court by the opposing party.
Choice 3 NO, because only the mediator can make the determination that Sam is acting in bad faith, and if so only the mediator can report this to the court.
Choice 4 NO, because the confidentiality imposed on all parties to a mediation would prevent the disclosure absent Sam’s consent, which is (obviously) unlikely to be granted.
Maddie and Murphy are siblings who disagree on many things, including who gets to own the antique couch left to them by their parents upon their parents’ death. Murphy sues Maddie, but before the case goes to trial they each experience a twang of guilt and decide to attempt to resolve their differences with the aid of a mediator. After entering into a mediation agreement, who may tell the court about the parties’ plans?
Choice 1 Only Murphy, as the original plaintiff, because disclosing the mediation agreement to the court will temporarily suspend the trial, and allowing defendants to do so would invite fraud and manipulation of the process.
Choice 2 Only Maddie, as the original defendant, because she is innocent until proven guilty and is therefore granted the latitude to seek alternative resolution to the dispute which names her as a defendant.
Choice 3 Either Murphy or Maddie, as the parties of interest in the case.
Choice 4 Anyone involved, including Murphy, Maddie, and the mediator.
Uncle Fred’s Waterbed Warehouse is a local business which specializes in the sale of – you guessed it - waterbeds. “Uncle Fred” is really Fletch F. “Babar” Fletcher. Fletch (or “Babar,” as he likes to be called) is slick, shady, and all-around untrustworthy. Last year he was named as the defendant in a class-action lawsuit, wherein it was alleged that his beds were not, in fact, made of “space age, puncture-proof materials,” as advertised, but rather from used rubber gloves held together with cheap rubber cement. After a lengthy discovery process, Babar finally agrees to voluntary mediation – just days before trial was set to begin. Thinking this a sign of weakness, the plaintiff’s attorneys are quite excited. That excitement waned, however, when 2 weeks into mediation they found that crucial evidence had been stolen from their office. Days later, one of their expert witnesses (a big name in the rubber glove industry) had been threatened and was no longer willing to testify at the mediation sessions. Clearly, Babar has engaged in criminal conduct. Who may disclose this to the court?
Choice 1 Only a named plaintiff or a member of the class.
Choice 2 Any plaintiff or plaintiff’s attorneys.
Choice 3 Anyone, including the mediator.
Choice 4 Nobody may disclose this “criminal” conduct, as it has not yet been shown beyond a reasonable doubt.

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