Professor Mitchell H. Rubinstein at the Adjunct Law Prof discussed last week this mediation confidentiality case:
Anthony v. Andrews, 2009 WL 4547605 (Ohio Ct. App. Dec. 4, 2009), is an interesting mediation case. Rebecca Anthony sued Dr. Annette Andrews in state court alleging medical malpractice. During a court-ordered mediation, Andrew’s counsel informed the mediator that Andrews would not give her consent to settle the matter and had never given consent to do so. The mediator included these statements in his mediation report. Upon viewing the report, the trial court concluded that Andrew’s counsel had failed to negotiate in good faith during the mediation. The trial court sanctioned Andrews in the amount of Anthony’s attorneys fees, lost income, and expenses in attending the session. Andrews appealed to the Court of Appeals of Ohio. The Court reversed. The Court held that the statements regarding Andrew’s consent were statutorily privileged from disclosure as mediation communications and failed to meet any exceptions to the privilege as permitted by statute. The Court rejected Anthony’s argument that no privilege should apply since no mediation took place because Andrew’s counsel lacked settlement authority, explaining that the statute nonetheless considers certain statements made pursuant to mediation as mediation communications.
This was not a labor case which is governed by federal law. Also, most states do not have mediation privilege statutes.
We would like to hear how other jurisdictions handle the issue of mediation confidentiality!
- 2009 Developments in Mediation: Mediation Confidentiality (Dec. 31, 2009)
- The Uniform Mediation Act and Confidentiality (Oct. 2, 2009)
- Mediation Confidentiality (Sept. 19, 2009)
- Legislating ‘Bad Faith’ in Mediation (Sept. 4, 2009)