February 09, 2011 – John F. Warner v. Horace Calvert and Jody Lusk, a/k/a Jody Calvert, Individually, North American Pizza Solutions, Inc., a New Mexico Corporation, and Albuquerque Pizza Solutions, L.L.C., a Limited Liability Company, No. 29,674

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: February 9, 2011

NO. 29,674.

JOHN F. WARNER,
Plaintiff/Counterdefendant-A ppellee,

V.

HORACE CALVERT and JODY LUSK

a/k/a J ODY CALVERT, Individually,

NORTH AMERICAN PIZZA SOLUTIONS,

INC., a New Mexioo Corporation, and

ALBUQUERQUE PIZZA SOLUTIONS, L.L.C.,

a Limited Liability Company,
Defendants/Counterclaimants/Crossclaimants-A ppellants,

and

NINA W. TRUE and JOHN D. PHILLIPS,
Crossdefendants/Crossclaimants-A ppellees.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Valerie A. Huling, District J udge

Aguilar & Aguilar, P.C.
Esteban A. Aguilar, Jr.
Albuquerque, NM
for Appellee Warner
The Frith Firm
Gilbert Houston Frith
Heather Breen
Santa Fe, NM
for Appellants
Ahmad Assed
Albuquerque, NM
George M. Allen
Telluride, CO
for Appellee True
John D. Phillips
Pro Se Appellee

OPINION
GARCIA, Judge.
{1} 	In this interlocutory appeal, Horace Calvert and Jody Calvert, a.k.a. Jody Lusk,
North American Pizza Solutions, Inc. (NAPS) and Albuquerque Pizza Solutions,
L.L.C. (APS) (hereinafter referred to as Appellants) appeal the district court’s order
appointing Judith Wagner as an expert witness pursuant to Rule 11-706 NMRA and
determining that the valuation report prepared by Ms. Wagner in 2009 (2009
Valuation Report) may be admitted at trial. Appellants raise two issues on appeal:
(1) Ms. Wagner may not serve as a Rule 11-706 expert witness because she was a
nonparty participant in the mediation; and (2) Ms. Wagner’s 2009 Valuation Report
is a mediation communication that is confidential and inadmissable as evidence at
trial. This appeal presents issues of first impression under the Mediation Procedures
Act (the MPA or the Act), NMSA 1978, Sections 44-7B-1 to -6 (2007), which became
effective on July 1, 2007. 	We affirm the district court ruling regarding the
appointment of Ms. Wagner as a Rule 11-706 expert witness, but we reverse regarding
the admissibility of Ms. Wagner’s 2009 Valuation Report.
BACKGROUND
{2} 	Although this case has an extensive history, we limit our recitation of the
factual and procedural history to those details pertinent to the issues on interlocutory

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appeal. 	In 	the 	underlying 	lawsuit, 	Appellee 	John 	Warner 	(Warner) 	and
Crossclaimant-Appellee Nina True (True) each claim entitlement to money damages
as well as stock in Defendant corporations, NAPS and APS. Warner and True each
allegedly loaned Crossdefendant-Appellee John Phillips (Phillips) funds for purposes
of building and operating a new APS franchise. Both loans were allegedly secured
with interest in Phillips’ stock in NAPS, and concomitantly, his membership interest
in APS. Additionally, Phillips allegedly executed assignments separately transferring
his equity interest in NAPS to both Warner and True.
{3} 	On September 18, 2008, the district court referred this case to a settlement
conference and appointed a settlement facilitator. 	During the first settlement
conference on February 22, 2008, the facilitator’s outcome report indicates that “[t]he
parties reached an agreement to obtain some additional information, necessary to
settlement evaluation, before reconvening” for a second settlement conference. At
that conference, the parties also entered a written agreement to hire an expert to
perform a valuation of NAPS, which was signed by all parties. 	The agreement
recognized that True and Warner were “unable to fully evaluate [Defendants’]
settlement offer without a valuation of the business and a valuation of the stock owned
by John Phillips.” As a result, the parties agreed to retain Ms. Wagner to perform a
valuation of NAPS and further agreed that the cost of the valuation would be split

3
equally between the parties. Once the valuation was completed, the parties agreed to
determine if a settlement could be reached based on the initial settlement offer, and
if not, the parties agreed to participate in a second settlement conference.
{4} 	On March 28, 2008, Ms. Wagner drafted a letter of engagement regarding the
terms of the business valuation, which each of the parties ultimately signed. The letter
stated that the “purpose of the valuation is to provide information relating to the value
of NAPS and Mr. Phillips’ disputed value therein for purposes of mediation.” The
letter clarified that Ms. Wagner was not acting as an arbitrator in the dispute and that
any agreement as to the value ultimately agreed upon between the parties would be
their own. The parties retained Ms. Wagner to create the 2009 Valuation Report “for
purposes of mediation” and agreed that distribution of the report would be restricted
to mediation purposes and internal use by the parties’ tax and legal advisors. Finally,
the letter contemplated that additional fees would apply if Ms. Wagner was requested
to testify. The letter clarified that the original fee estimate included drafting the 2009
Valuation Report, but it did not include “any services that may be required to defend
[the] 	valuation 	report 	in 	litigation, 	including 	conferences, 	depositions, 	court
appearances and testimony.”
{5} 	A second settlement conference was originally scheduled for October 6, 2008,
but it was rescheduled for January 14, 2009, in order to allow time for the 2009

4
Valuation Report to be completed prior to the mediation. The report was completed
on January 8, 2009. The report’s preface indicates that “[t]he purpose of the valuation
is to provide information relating to the value of NAPS and Mr. Phillips’ disputed
value therein for purposes of mediation.” 	The report further indicated that the
calculation was “prepared for mediation purposes only and should not be provided to
third parties without the express written consent of Wagner Valuation & Financial
Forensics, LLC.” Finally, the report reiterated that the “calculation was performed
solely to assist [the parties] in mediation” and that the resulting estimate of value
“should not be used for any other purpose” without the express written consent of
Wagner. The second settlement conference did not result in settlement, and this case
was subsequently scheduled for trial.
{6} 	On March 2, 2009, Warner filed a motion to appoint Ms. Wagner as an expert
witness pursuant to Rule 11-706. 	After a hearing on the matter, the district court
entered an order on May 18, 2009, appointing Ms. Wagner as the district court’s Rule
11-706 expert witness. 	The district court ordered that the cost of Ms. Wagner’s
services would be split equally between the parties, pending the district court’s
review. Additionally, the court ruled that Ms. Wagner’s 2009 Valuation Report “may
be admitted at trial to show liability of any and all claims in this lawsuit and to
determine the amount of liability and/or punitive damages if any,” subject to possible

5
limitations on its use based on further motion by the parties.
{7} 	Appellants requested an interlocutory appeal of the district court’s order
appointing Ms. Wagner as a Rule 11-706 expert witness, and the district court entered
an order certifying the issue for interlocutory appeal to this Court. The district court
reasoned that the issue “involves a controlling question of law as to which there is
substantial ground for difference of opinion and that an immediate appeal from the
order or decision may materially advance the ultimate termination of the litigation.”
The district court also entered findings that Ms. Wagner “was retained by the parties
to perform a valuation of [NAPS] for purposes of mediation,” that the court appointed
Ms. Wagner as a Rule 11-706 expert witness, and that Appellants requested an
interlocutory appeal based upon Ms. Wagner’s “role in the mediation and her
agreement to prepare a valuation for purposes of mediation between the parties.”
DISCUSSION
{8} 	This appeal requires an interpretation of the newly enacted MPA. Only one
published New Mexico case has cited to the MPA, but the Act did not control the
outcome of that case. See Carlsbad Hotel Assocs., L.L.C. v. Patterson-UTI Drilling
Co., 2009-NMCA-005, ¶ 31, 145 N.M. 385, 199 P.3d 288 (noting that the MPA was
enacted after the settlement conference had already occurred and that it did not control
the outcome of the case). 	The MPA applies to mediators, mediation parties, and

6
nonparty participants in mediations where the parties were either “required to mediate
by statute or court or administrative agency rule or [were] referred to mediation by a
court, administrative agency or arbitrator.” Section 44-7B-3(A)(1). The MPA also
applies where the parties and mediator agree to participate in mediation and evidence
that agreement with “a record that is signed by the mediation parties.” Section 44-7B-
3(A)(2). The district court referred this case to a settlement conference on September
18, 2007, and the settlement conferences occurred after the effective date of the MPA.
As a result, the MPA is applicable to this case pursuant to Section 44-7B-3(A)(1).
{9} 	Appellants raise two issues on appeal pursuant to the MPA. Appellants contend
that Ms. Wagner may not serve as a Rule 11-706 expert witness because she was a
nonparty participant in the mediation, as defined by Section 44-7B-2. Additionally,
Appellants 	argue 	that 	Ms. 	Wagner’s 	2009 	Valuation 	Report 	is 	a 	mediation
communication that is confidential and inadmissable as evidence at trial, pursuant to
Section 44-7B-4.
A. 	Review of Expert Witness Issue on Interlocutory Appeal
{10} 	As a preliminary matter, we address Warner’s argument that the issue of
whether Ms. Wagner may testify as a Rule 11-706 expert is not “ripe” for
interlocutory review. We determine that the district court order properly certified the
expert witness issue to this Court for interlocutory review, pursuant to NMSA 1978,

7
Section 39-3-4(A) (1999). 	Specifically, the district court’s order indicated that its
appointment of Ms. Wagner as a Rule 11-706 expert witness “involves a controlling
question of law as to which there is a substantial ground for difference of opinion and
that an immediate appeal from the order or decision may materially advance the
ultimate termination of the litigation.” As a result, the district court’s order appointing
Ms. Wagner as an expert witness is appropriate for review on interlocutory appeal.
See Candelaria v. Middle Rio Grande Conservancy Dist., 107 N.M. 579, 581, 761
P.2d 457, 459 (Ct. App. 1988) (reasoning that interlocutory appeals are allowed when
the district court identifies an issue and certifies that “the order involves a controlling
question of law on which there is substantial ground for difference of opinion,” and
“resolution of the question will materially advance the ultimate termination of the
litigation”).
B. 	Interpretation of the Mediation Procedures Act
{11} 	We first examine whether the MPA imposes any limitations that would prevent
Ms. Wagner from either testifying or disclosing the contents of her 2009 Valuation
Report as a result of her being retained by the parties to prepare the report for
mediation purposes.
{12} 	The meaning of statutory language “is a question of law that we review de
novo.” United Rentals Nw., Inc. v. Yearout Mech., Inc., 2010-NMSC-030, ¶ 7, 148

8
N.M. 426, 237 P.3d 728 (internal quotation marks and citation omitted). 	In
interpreting a statute, our goal is to “determine and give effect to the Legislature’s
intent.” Marbob Energy Corp. v. N.M. Oil Conservation Comm’n, 2009-NMSC-013,
¶ 9, 146 N.M. 24, 206 P.3d 135. 	Pursuant to the Uniform Statute and Rule
Construction Act, “[t]he text of a statute or rule is the primary, essential source of its
meaning.” NMSA 1978, § 12-2A-19 (1997). As a result, we first examine “the plain
language of the statute, giving the words their ordinary meaning, unless the
Legislature indicates a different [meaning] was intended.” 	N.M. Indus. Energy
Consumers v. N.M. Pub. Reg. Comm’n, 2007-NMSC-053, ¶ 20, 142 N.M. 533, 168
P.3d 105. “[W]hen a statute contains language [that] is clear and unambiguous, we
must give effect to that language and refrain from further statutory interpretation.”
Truong v. Allstate Ins. Co., 2010-NMSC-009, ¶ 37, 147 N.M. 583, 227 P.3d 73
(internal quotation marks and citation omitted). “Only if an ambiguity exists will we
proceed further in our statutory construction analysis.” Marbob Energy Corp., 2009-
NMSC-013, ¶ 9.
1. 	Definition of a Nonparty Participant in a Mediation
{13} 	As a preliminary matter, we examine how the MPA defines Ms. Wagner’s role
in the mediation. 	Appellants argue that Ms. Wagner served as a “nonparty
participant” in the mediation, as defined by Section 44-7B-2(F). We agree based upon

9
the plain language of the defined term. The MPA defines a nonparty participant as “a
person, other than a mediation party or mediator, who participates in, is present during
the mediation or is a mediation program administrator, including a person consulted
by a mediation party to assist the mediation party with evaluating, considering or
generating offers of settlement.” Section 44-7B-2(F).
{14} 	Ms. Wagner was a nonparty participant in the mediation because she was
retained by the parties to assist the mediation process by preparing a report that would
allow Warner and True to more accurately evaluate the settlement offer of NAPS and
Phillips. At the first settlement conference, the facilitator’s outcome report indicated
that “[t]he parties reached an agreement to obtain some additional information,
necessary to settlement evaluation, before reconvening” for a second settlement
conference. (Emphasis added.) Moreover, the agreement entered by the partes at the
first settlement conference indicates that the parties agreed to hire Ms. Wagner to
perform a valuation of NAPS because True and Warner were “unable to fully evaluate
[Defendants’] settlement offer without a valuation of the business and a valuation of
the stock owned by John Phillips.” 	(Emphasis added.) 	As a result, the parties
mutually agreed to retain Ms. Wagner. 	The engagement agreement specifically
indicated that her valuation service were to be performed “for purposes of mediation.”
The importance of Ms. Wagner’s valuation to reconvening mediation was further

10
highlighted by the rescheduling of the second settlement conference in order to allow
the valuation report to be completed. 	Consequently, Ms. Wagner was a nonparty
participant in the mediation because she was consulted and retained by the parties to
prepare specific documentation that would assist with the settlement evaluations
during the mediation process.
{15} 	Warner argues that Ms. Wagner does not qualify as a nonparty participant
because she was not present and did not personally participate in either settlement
conference. 	However, the MPA does not require that a nonparty participant be
physically present or participate at the actual settlement conference. Instead, the use
of the conjunctive word “or” to connect each statutory phrase indicates that there are
three distinct alternative circumstances under which a person may qualify as a
nonparty participant: 	(1) participating in the mediation, (2) being present at the
mediation, or (3) serving as a “mediation program administrator, including a person
consulted by a mediation party to assist in evaluating, considering, or generating
offers of settlement.” Section 44-7B-2(F); see Wilson v. Denver, 1998-NMSC-016,
¶ 17, 125 N.M. 308, 961 P.2d 153 (holding that the use of the word “or” in a statute
means that any of the listed alternatives will suffice unless the context of the statute
indicates otherwise). 	Consequently, the fact that Ms. Wagner was not physically
present at either of the settlement conferences does not preclude her from being a

11
nonparty participant in the mediation. Moreover, we need not decide whether Ms.
Wagner’s actions constituted “participating” in the mediation under the first prong of
the definition because she clearly qualifies as a nonparty participant under the third
prong as a result of being consulted by the parties to assist in their evaluation of the
proposed settlement offer.
{16} 	Warner further argues that Ms. Wagner does not qualify as a nonparty
participant because her valuation was not completed at the request of the mediator or
for use by the mediator. However, the definition of a nonparty participant expressly
includes a person who was “consulted by a mediation party to assist the mediation
party with evaluating, considering or generating offers of settlement.” Section 44-7B-
2(F) (emphasis added). The Act clarifies that a “mediation party” is “a person who
participates in a mediation and whose agreement is necessary to resolve the dispute.”
Section 44-7B-2(C). 	Hence, the parties in this lawsuit were the mediation parties
under the MPA because their participation and agreement was necessary to resolve the
dispute being litigated. Consequently, under the plain language of the Act, a nonparty
participant need not be consulted by the mediator or asked to directly assist the
mediator. Instead, as in this case, a nonparty participant includes a person consulted
by the mediation parties to assist the parties in evaluating a settlement offer. As a
result, the MPA defines Ms. Wagner’s role in the mediation as that of a nonparty

12
participant.
2. 	Nonparty Participant Testimony at Trial
{17} 	Appellants argue that the MPA prevents Ms. Wagner from testifying at trial
because she was a nonparty participant in the mediation. We disagree based upon an
examination of the MPA as a whole and consideration of how its provisions relate to
one another in the overall settlement process. 	See N.M. Bd. of Veterinary Med. v.
Riegger, 2007-NMSC-044, ¶ 11, 142 N.M. 248, 164 P.3d 947 (determining that the
entire statute should be construed “as a whole so that all the provisions will be
considered in relation to one another” (internal quotation marks and citation omitted)).
Although the MPA contains a specific provision limiting the disclosure of matters
related to mediation communications by a mediator, the MPA does not impose
limitations specific to nonparty participants in a mediation. 	Section 44-7B-5(C).
However, the general provisions of the Act are applicable to nonparty participants.
See § 44-7B-3 (stating that the MPA applies to mediators, nonparty participants, and
mediation parties). One general provision states that “[e]xcept as otherwise provided
in the [MPA] . . . or by applicable judicial court rules, all mediation communications
are confidential, and not subject to disclosure and shall not be used as evidence in any
proceeding.” 	Section 44-7B-4. 	The MPA also includes generally applicable
exceptions, which permit disclosure and admissibility of mediation communications

13
under certain circumstances. 	Section 44-7B-5(A) & (B). 	The MPA does not,
however, contain any general prohibitions against nonparty participants testifying at
trial.
{18} 	We “will not read into a statute or ordinance language which is not there,
particularly if it makes sense as written.” High Ridge Hinkle Joint Venture v. City of
Albuquerque, 1998-NMSC-050, ¶ 5, 126 N.M. 413, 970 P.2d 599 (internal quotation
marks and citation omitted). 	We read Section 44-7B-4 to prevent a nonparty
participant from disclosing mediation communications, absent an applicable exception
in Section 44-7B-5 or other judicial court rules. 	The MPA does not contain any
additional provisions that further limit a nonparty participant’s disclosure or
testimony. In this context, we must now address Ms. Wagner’s participation in the
mediation. Ms. Wagner did not testify before the mediator; however, her valuation
report was prepared for the parties so that they could better assess the offer pending
during the mediation process. We interpret the MPA to limit the content of a nonparty
participant’s testimony at trial to prevent the disclosure of mediation communications
absent an applicable exception. 	Consequently, the MPA does not prohibit Ms.
Wagner from testifying at trial, but it may limit the scope of her testimony. Where
such a limitation makes sense as written and the parties do not argue that the statutory
language is ambiguous, we apply the language of the Act as written and leave any

14
alternation or extension of the scope of the MPA to the Legislature. 	See Clark v.
Lovelace Health Sys., Inc., 2004-NMCA-119, ¶ 14, 136 N.M. 411, 99 P.3d 232
(reasoning that when statutory language is unambiguous, this Court applies it as
written, leaving any alteration or extension of the scope of a statute to the Legislature).
3. 	Limitations and Admissibility of Mediation Communications
{19} 	Appellants argue that the MPA prohibits Ms. Wagner from testifying regarding
her valuation of NAPS and the 2009 Valuation Report because the report is a
mediation communication. Appellants also contend that Ms. Wagner may not testify
regarding her communications with the parties during the mediation process.
However, Appellants cite neither the record nor case law to develop their argument
regarding whether any additional communications beyond Ms. Wagner’s 2009
Valuation Report qualify as mediation communications. 	Consequently, we only
address whether Ms. Wagner’s 2009 Valuation Report qualifies as a mediation
communication and do not address any additional communications between Ms.
Wagner and the parties. 	See Headley v. Morgan Mgmt. Corp., 2005-NMCA-045,
¶ 15, 137 N.M. 339, 110 P.3d 1076 (concluding that this Court has no duty to review
an argument that is not adequately developed with facts, citation to the record, and
authority).
{20} 	The MPA defines a “mediation communication” as “a statement, whether oral

15
or in a record or verbal or nonverbal, that occurs during a mediation or is made for
purposes of considering, conducting, participating in, initiating, continuing or
reconvening a mediation or retaining a mediator.” Section 44-7B-2(B). As previously
discussed, “[e]xcept as otherwise provided in the [MPA] . . . or by applicable judicial
court rules, all mediation communications are confidential, and 	not subject to
disclosure and shall not be used as evidence in any proceeding.” Section 44-7B-4.
The 	only 	exceptions 	under 	the 	MPA 	to 	the 	confidentiality 	of 	mediation
communications are identified in Section 44-7B-5.
{21} 	Based upon the plain language of the MPA, Ms. Wagner’s 2009 Valuation
Report is a mediation communication because it is a written statement that was “made
for purposes of considering, conducting, participating in, initiating, continuing or
reconvening a mediation.” Section 44-7B-2(B). At the first settlement conference,
the facilitator’s outcome report indicated that “the parties reached an agreement to
obtain some additional information, necessary to settlement evaluation, before
reconvening” for a second settlement conference. (Emphasis added.) Moreover, the
pleadings and the parties’ written agreements confirm that Ms. Wagner was retained
to perform a valuation of NAPS “for purposes of mediation” due to Warner and
True’s inability to fully evaluate the settlement offer without a valuation. 	The
agreement expressly states that “[o]nce the evaluation is done, the parties will

16
determine if a settlement can be reach[ed] and, if they are not able to agree, the parties
will participate in a second mediation at which all of the parties shall appear and
attend.” Similarly, the parties’ engagement agreement regarding the retention of Ms.
Wagner and the 2009 Valuation Report itself both state that Ms. Wagner’s valuation
was performed for purposes of mediation. 	Finally, the rescheduling of the second
settlement conference in order to allow the 2009 Valuation Report to be completed
further emphasizes the report’s centrality to reconvening mediation. As a result, we
conclude that the 2009 Valuation Report is a mediation communication because it was
prepared for purposes of considering the settlement offer from the first settlement
conference and for participating in, initiating, or reconvening a second settlement
conference.
{22} 	The parties do not contend that the definition of a mediation communication is
ambiguous. Instead, Warner appears to argue that the 2009 Valuation Report does not
qualify as a mediation communication because the underlying documents that Ms.
Wagner used to prepare the report are discoverable and not confidential. 	Warner
relies upon Section 44-7B-5(D)(1) of the MPA, which states that “[n]othing in the
[MPA] shall prevent . . . the discovery or admissibility of any evidence that is
otherwise discoverable or admissible, merely because the evidence was presented
during a mediation.” The district court determined and Appellants do not dispute that

17
the documents underlying the 2009 Valuation Report are discoverable and admissible.
Such underlying documents remain fully admissible at trial. However, the issue on
appeal is whether the 2009 Valuation Report itself is admissible. We conclude that
the 2009 Valuation Report was not an underlying document and is not admissible
pursuant to Section 44-7B-5(A)(1) because the MPA provides that such mediation
communications “are not subject to disclosure and shall not be used as evidence in
any proceeding” unless an exception applies. Section 44-7B-4 (emphasis added). As
defined by the Uniform Statute and Rule Construction Act, the words “‘shall not’
prohibit the exercise of a power, authority, privilege or right.” NMSA 1978, § 12-2A-
4(C) (1997). 	Consequently, the MPA contains mandatory language that prevents
disclosure and admissibility of the 2009 Valuation Report that was prepared for
mediation, unless an exception applies. See Marbob Energy Corp., 2009-NMSC-013,
¶ 22 (reasoning that “‘shall’ indicates that [a] provision is mandatory, and we must
assume that the Legislature intended the provision to be mandatory absent a[] clear
indication to the contrary”).
{23} 	We further conclude that no exception permits the disclosure of the 2009
Valuation Report at trial. The MPA provides that mediation communications are not
confidential if the communications meet one of ten exceptions, including where the
communications

18
(1) are contained in an agreement reached by the mediation parties
during a mediation . . . ; (2) are communications that all mediation
parties agree may be disclosed . . . ; (3) threaten or lead to actual
violence in the mediation; (4) reveal the intent of a mediation party to
commit a felony or inflict bodily harm . . . ; (5) disprove a felony charge;
(6) are required by law to be made public or otherwise disclosed; (7)
relate to abuse, neglect or criminal activity that is not the subject of the
mediation; (8) are sought or offered to disprove a claim or complaint of
professional 	misconduct 	or 	malpractice 	. 	. 	. 	; 	(9) 	relate 	to 	the
administrative facts of the mediation . . . ; or (10) relate to whether the
parties reached a binding and enforceable settlement in the mediation.”
Section 44-7B-5(A). Additionally, the MPA states that “[m]ediation communications
may be disclosed if a court, after hearing in camera and for good cause shown, orders
disclosure of evidence that is sought to be offered and is not otherwise available.”
Section 44-7B-5(B).
{24} 	Warner argues that pursuant to Section 44-7B-5(A)(2), Ms. Wagner’s 2009
Valuation Report and the documents produced to her are not confidential because the
parties reached an agreement at the mediation that all parties were entitled to any
information given to Ms. Wagner for the valuation. Section 44-7B-5(A)(2) provides
that mediation communications are not confidential if they “are communications that
all mediation parties agree may be disclosed, as evidenced by a record signed by all
mediation parties prior to or at the mediation.” At the first settlement conference, the
parties agreed that 	“[t]he parties are entitled to disclosure of any documents upon
which Ms. Wagner relies for her opinions, subject to a [c]onfidentiality [o]rder.”

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However, the agreement does not contain any language indicating that the 2009
Valuation Report may be disclosed and was not confidential. Moreover, the letter
engaging Ms. Wagner’s services supports the determination that Ms. Wagner and the
parties agreed that the 2009 Valuation Report was confidential and not subject to
disclosure. The letter, which was signed by all of the parties, expressly states that the
distribution of the 2009 Valuation Report is restricted to internal use by the parties’
tax and legal advisors and “for purposes of mediation only and accordingly, will not
be distributed to outside parties to obtain credit or for any other purposes.”
Consequently, we conclude that the parties did agree that the 2009 Valuation Report
itself was a confidential mediation communication that could not be used for any other
purpose, including disclosure or use at trial.
{25} 	Finally, we recognize that our interpretation of whether Ms. Wagner’s 2009
Valuation Report is a mediation communication is also consistent with the Uniform
Mediation Act (UMA). The definition of “mediation communication” in the MPA is
exactly the same as the UMA definition. Compare MPA, § 44-7B-2(B), with Unif.
Mediation Act § 2(2), U.L.A. Med § 2 (2009). 	Moreover the UMA commentary
regarding a mediation communication indicates that whether the document is prepared
for the mediation is crucial to determining whether the document is a mediation
communication. Unif. Mediation Act, § 2(2) cmt., U.L.A. Med § 2. The commentary

20
further indicates that documents prepared for mediation by an expert witness may be
included in the definition. Id. Consequently, because the 2009 Valuation Report was
prepared for the mediation, the UMA supports the determination that it qualifies as a
mediation communication.
C. 	Limitations Imposed by the Parties’ Agreements
{26} 	Interpretation of the parties’ agreements is a question of law that we review de
novo. 	Campbell v. Millennium Ventures, LLC, 2002-NMCA-101, ¶ 15, 132 N.M.
733, 55 P.3d 429. In interpreting the agreements, our goal is to “give effect to the
intent of the parties, and when the terms of the agreement are clear and unambiguous,
[we] try to ascertain the intent of the parties from the ordinary meaning of the
language in the agreement.” Heimann v. Kinder-Morgan CO2 Co., 2006-NMCA-127,
¶ 13, 140 N.M. 552, 144 P.3d 111 (internal quotation marks and citation omitted).
{27} 	We emphasize that nothing in the parties’ agreements regarding the retention
of Ms. Wagner prevents her from testifying at trial. Although the parties agreed to
retain Ms. Wagner to prepare a valuation report for purposes of mediation, the
agreement regarding the engagement of Ms. Wagner’s services contemplates that
additional fees would apply if Ms. Wagner was requested to testify at trial. 	The
agreement clarifies that the original fee estimate included drafting the 2009 Valuation
Report, but did not include “any services that may be required to defend [the]

21
valuation report in litigation, including conferences, depositions, court appearances
and testimony.” Consequently, based upon the unambiguous terms of the engagement
agreement, the parties expressly contemplated that Ms. Wagner may be requested to
testify at trial regarding her valuation of NAPS.
{28} 	As previously discussed, the MPA prevents Ms. Wagner from testifying
regarding the 2009 Valuation Report or other use of that report at trial. However, Ms.
Wagner may testify regarding documents underlying the valuation of NAPS pursuant
to the parties’ agreement allowing the disclosure of those documents and the district
court’s determination that those underlying documents are not confidential and can
be disclosed. 	In addition, the parties’ agreements do not address Ms. Wagner’s
preparation or use of a new valuation report for trial purposes. Consequently, if the
district court or the parties desire for Ms. Wagner to prepare a new expert valuation
report for trial purposes, that new report would need to be prepared under the
parameters of Ms. Wagner’s appointment as a Rule 11-706 expert.
D. 	Appointment of Ms. Wagner as a Rule 11-706 Expert
{29} 	Appellants argue that the district court erred by appointing Ms. Wagner as a
Rule 11-706 expert due to her role as a nonparty participant in the mediation and her
preparation of the 2009 Valuation Report for mediation purposes. We disagree.
{30} 	Rule 11-706(A) provides that the district court “may appoint any expert

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witnesses of its own selection to give evidence in the action except that, if the parties
agree as to the experts to be appointed, the court shall appoint only those designated
in the agreement.” 	Pursuant to Rule 11-706, the district court has “authority to
appoint an independent expert unaligned with either party to assist the court in
determining significant issues in the proceeding.” 	Papatheofanis v. Allen, 2009-
NMCA-084, ¶ 11, 146 N.M. 840, 215 P.3d 778 (internal quotation marks and citation
omitted). We review the district court’s appointment of Ms. Wagner as a Rule 11-706
expert for an abuse of discretion. See In re Adoption of Stailey, 117 N.M. 199, 204-
05, 870 P.2d 161, 166-67 (Ct. App. 1994) (concluding that Rule 11-706 gives the
district court broad discretion to appoint an impartial expert witness to assist the court
and to apportion the costs of the expert witness among the parties).
{31} 	Before appointing Ms. Wagner as the Rule 11-706 expert witness, the district
court considered Ms. Wagner’s previous role in the mediation, the mutual agreement
to retain Ms. Wagner to prepare an independent valuation of NAPS for the benefit of
the parties, and the agreed sharing of the costs for Ms. Wagner’s services equally
among the parties. 	The court determined that Ms. Wagner “has no confidential
information from the mediation process” and that Ms. Wagner was “not tainted in any
way.” 	The court further concluded that Ms. Wagner’s testimony and opinion
regarding the valuation would assist the court in determining the amount of liability

23
and/or punitive damages if any. 	Additionally, the court reasoned that hiring a
different expert witness would result in increased costs to the parties. 	Finally, the
district court reasoned that even if Ms. Wagner had confidential information from the
mediation process, her testimony could be limited to prevent disclosure of that
information. As previously discussed, the MPA will impose a slight limitation on the
content of Ms. Wagner’s testimony, but it does not prohibit Ms. Wagner from
otherwise testifying as a valuation expert as a result of her prior service as a nonparty
participant in the mediation to prepare the 2009 Valuation Report. We conclude that
the district court did not abuse its discretion by appointing Ms. Wagner as a Rule 11-
706 expert witness and that Ms. Wagner may serve in that capacity, subject to the
previously discussed limitations imposed by the MPA regarding any use of the 2009
Valuation Report.
{32} 	If the district court desires for Ms. Wagner to prepare a new valuation report in
her capacity as a Rule 11-706 expert, the nature and scope of any new report remains
within the discretion of the district court, subject to the limitations imposed herein
regarding the use of the 2009 Valuation Report. The scope of any new report may
also take into account other circumstances that have transpired since the date of
mediation. If a new valuation report is not prepared, then the MPA and the parties’
existing agreements would limit Ms. Wagner’s expert testimony to her opinion based

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upon the documents underlying her valuation of NAPS, without any submission or
testimony regarding the 2009 Valuation Report. Although this Court’s determination
may effectuate little change in Ms. Wagner’s expert testimony at trial, the parties’
agreement combined with the limitations imposed by the MPA require such a result.
CONCLUSION
{33} 	We affirm the district court’s order regarding appointment of Ms. Wagner as
a Rule 11-706 expert, but we reverse the district court’s ruling that Ms. Wagner’s
2009 Valuation Report may be used or admitted at trial. We remand the case to the
district court for further proceedings consistent with this Opinion.
{34} 	IT IS SO ORDERED.
________________________________
TIMOTHY L. GARCIA, Judge
WE CONCUR:
__________________________________
CELIA FOY CASTILLO, Chief Judge

JAMES J. WECHSLER, Judge
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