In a pre-hearing dispute over document production for a statutory accident benefits arbitration, the applicant sought the insurer's post-mediation adjuster's notes, while the insurer sought the clinical notes of the applicant's treating psychiatrist.
The arbitrator held that mediation serves as a convenient dividing line for when parties are in an adversarial position, but litigation privilege does not automatically attach to all post-mediation adjuster's notes.
The arbitrator reviewed the notes and ordered production of those not protected by litigation or solicitor-client privilege.
The arbitrator also ordered the applicant to produce the psychiatrist's clinical notes, finding them relevant and noting no evidence that disclosure would harm the patient, but restricted the insurer from releasing them outside the health care practitioners involved in the arbitration.
