Wife and Husband are participating in court-ordered mediation concerning the custody and support of their children in connection with their divorce case. During one of the mediation sessions Husband expostulates, "When this nightmare is over, you won't be seeing anything of me! I never want to speak to you again!" At the trial one of the issues is whether there should be joint or separate custody of the parties' children. Wife calls the mediator as a witness to testify to Husband's outburst. What ruling and why?


Although Rule 408 does not explicitly refer to mediation many of the policy justifications for excluding statements made in the course of negotiations would apply to statements made in mediation. Are there differences which would justify different treatment of statements made in mediation? Are there limited purposes or issues on which statements in mediation should be admitted? Maine's version of Rule 408 has been amended to prohibit admission of statements made during court ordered divorce mediation for any purpose.

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