Mediation Privilege: The Twin Supports of Resolution (Part 2 of 2)

Mediation Confidentiality and Privilege: The Twin Supports of Resolution
Mediation Confidentiality and Privilege: The Twin Supports of Resolution

…Continued from Part 1:

The Mediation Privilege

The companion provision to mediation confidentiality is the mediation privilege, which makes evidence of mediation communications inadmissible in future legal proceedings. As with the confidentiality provisions discussed above, local laws are a crazy quilt, with only about half the states having adopted the UMA or similar provisions. The federal courts are even more inconsistent. Although there is a federal mediation privilege, the case supporting it is often distinguished, and it’s applicability to a particular case is difficult to predict. Under federal rules of evidence section 501, federal courts are empowered to grant privilege on a case by case basis, in light of reason and experience. Therefore, in a federal case it is even more important to consult with cabinet local legal counsel regarding the court’s likely approach to the mediation privilege. Because the UMA is the most authoritative source available, we will start our analysis there.

Section 4 of the Uniform Mediation Act provides: “(a) Except as otherwise provided in Section 6, a mediation communication is privileged as provided in subsection (b) and is not subject to discovery or admissible in evidence in a proceeding unless waived or precluded as provided by Section 5. (b) In a proceeding, the following privileges apply:
(1) A mediation party may refuse to disclose, and may prevent any other person from disclosing, a mediation communication.
(2) A mediator may refuse to disclose a mediation communication, and may prevent any other person from disclosing a mediation communication of the mediator. (3) A nonparty participant may refuse to disclose, and may prevent any other person from disclosing, a mediation communication of the nonparty participant.
(c) Evidence or information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its disclosure or use in a mediation.”

Ordinarily, as in the attorney-client, doctor-patient or priest-penitent privilege, the “holder” –that is, the person who may claim the privilege- is the client or penitent. He or she may claim or waive the privilege. In contrast, the doctor, attorney or priest may only raise the privilege on behalf of the client or penitent.

The mediation privilege is different. A party may claim the privilege to block the testimony or cooperation in discovery by another party, a mediator, or a non-party participant (attorney, expert or witness.) The privilege may also be asserted by mediators and non-party participants, but ask them to privilege limited to their own communications. Extension of the privilege In this way make sense if we consider the attorneys, experts, mediators or other witnesses may also have been unusually candid in attempting to help the parties reach settlement. Do you have the disclosures, or even to have the mediator, attorney or expert seen testifying about what is supposed to be a confidential process could badly damage their efficacy and reputation in future matters.

It is good practice to insert in any mediation agreement a provision requiring notice to all participants when any of them intends disclosures. Otherwise, they will never be aware of the need to assert the privilege in a future proceeding, unless they are a participant there as well.

Waiver and preclusion of the mediation privilege

Section 5 of the UMA concerns waiver of and preclusion the privilege. Such circumstances are limited. . Case law supports the general rule that a party may waive the privilege by a failure to timely object to the admission of evidence as to which the privilege applies
As to a party, the privilege may be waived by a writing signed by all parties. All to a non-party participant, the writing must be signed by that non-party participant. As to a mediator, the writing must be signed by that mediator.

Exclusions from the Mediation Privilege under the UMA

Section 6 of the UMA concerns exceptions to the privilege. These are similar to the exceptions to confidentiality discussed previously. Under Section 6 the privilege does not apply to:

A mediation that was open to the public, or as to which open records act provision apply;

A mediation agreement signed by all parties;

Evidence of threats of violence:

Using mediation to plan, attempt, commit or conceal a crime;

An action for malpractice against the mediator;

An action for malpractice against a party or a nonparty participant based on conduct at mediation

Evidence to prove or disprove a claim of abuse, neglect or exploitation against a child or dependent adult.

Evidence that is not otherwise available, as to which it can be shown that some other policy outweighs the policy supporting the mediation privilege if:

The related proceedings concern a felony or misdemeanor;

The related proceedings are to reform or invalidate a contract arising out of the mediation. However, the mediator may not be forced to testify in such proceedings.

Preclusion is action by the court using its equitable power to prevent a party acting in bad faith from taking advantage of the privilege to commit an injustice. The UMA lists only two examples of preclusion:

First, a person will be precluded from relying on the privilege if they are using mediation to plan, attempt, commit or conceal a crime;
Second, if a person discloses or makes a representation about another person Based on mediation communications and the subject of the disclosure is prejudiced thereby, the court will preclude a representing or disclosing party from using the privilege as a shield to hide behind. Instead it will offer waiver of the privilege in so far as it is necessary to offset the prejudice.
Because preclusion is an equitable concept The court is free to expand from these two examples to combat other unjust abuses of the mediation privilege.

Steps you can take to minimize the risk of future litigation springing from the mediation:


A. Draft an agreement to mediate that everyone can agree on.

The uniform mediation act and similar state statutes emphasize that drafting an agreement to mediate should be an exercise in self determination. If possible, draft this agreement before you need it. It will be much easier when there is no dispute in the background, and will give the parties practice at working together. Section 4 of the UMA, in line with the policy of self determination, provide that the parties may draft the boundaries of their confidentiality clause. So draft what you want in consultation with the other parties and your local counsel. Remember to also include a contractual notice provision if the mediation communications are to be used in another proceedings, so that everyone has notice of the opportunity to raise objections based on privilege.

B. Draft a skeletal agreement before you get to the mediation

It is desirable to have a signed agreement spelling at the terms of agreement before the parties leave the mediation session.Without one the agreement may not be enforceable. Make it easy on yourself. By this time everyone will be tired and in a hurry to go home. Draft a skeletal agreement before you go, putting in things that you know you will want, and even things other parties will want that you can live with. The more you can get done before the session m, the better. But leave space for the unforeseen. Bring it all on a laptop. But remember that some of your must haves . But this is it always truemay be ‘can’t gets’ Be ready to adapt.

C. Be sure your Client has their head in the game.

It’s a given that by the end of the mediation process everyone will be tired, emotionally spent, and feeling worn out. Hopefully, they are relieved and perhaps even happy. But this isn’t always true, and buyers remorse can be a powerful thing. Settlements have been invalidated before now because clients said they were too hungry, too tired, too ill or too dehydrated to consent. Check on your client. Is he or she shape to make a decision? Do they need a drink, a break or a snack?

If somebody is beyond exhausted, you obviously need to let them go home. But this is risky. Alone with your thoughts, clients remember five years ago when they started the lawsuit, they intended to get $1 million. Or they recall a line of questioning you should’ve used but didn’t. Given that they are in mediation, they probably have given up more than they intended. If they are capable, urge them to stay and sign the settlement they agreed to, and end the dispute. Confidentiality and privilege are critically important supports for the mediation process. Understanding how they work in your jurisdiction is vital. Coupled with careful preparation and drafting, these two protections are the supporting pillars of success in mediation.

Scott Van Soye
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