By Leslie King O’Neal
Location, Location, Location–Confidentiality Depends on Where the Mediation Occurs
Confidentiality is the bedrock of mediation. Parties will not communicate candidly with the mediator unless they know their statements will be confidential. However, there is no uniform mediation confidentiality law applicable in all 50 states, nor is there a uniform federal mediation confidentiality statute. While ADR providers, such as JAMS and AAA, have confidentiality rules, they are subject to applicable law and the parties’ agreement. Maintaining confidentiality requires lawyers and mediators to understand how mediation confidentiality law differs from state to state and, in the federal arena, between different courts. A previous post considered arbitration confidentiality. Confidentiality in arbitration–and afterward. This post looks at mediation confidentiality laws in several states and in the federal courts and provides suggestions for mediators and counsel to enhance confidentiality.
The “Not So Uniform” Mediation Act
Despite its name, only twelve states[i] and the District of Columbia have adopted the Uniform Mediation Act (UMA) http://Mediation Act – Uniform Law Commission (uniformlaws.org). Applicable to most mediations, the UMA has a broad confidentiality provision, making mediation communications privileged and not subject to discovery or admissible in evidence, with several exceptions.[ii] Mediators, mediation participants and non-party participants may assert the privilege, which can be waived. As with most other mediation privilege laws, the UMA privilege extends only to mediation communication and not to underlying facts, which remain discoverable. Under the UMA, mediators may not report back to the presiding court except as to mediation status or who participated. See previous post What is “good faith” in mediation? Is it enforceable? Over time, even UMA’s critics have become fans.
Other State Laws Re: Mediation Confidentiality
Most states have adopted mediation confidentiality laws, but they differ in scope and application. For example, some states provide confidentiality only for mediations connected to a court proceeding and not to “private” pre-suit mediations.
Florida
Florida has a broad law[iii] making all “mediation communications” confidential and provides “mediation parties” with a privilege “to refuse to testify and to prevent any other person from testifying” about “mediation communications.”[iv] There are penalties for violating the confidentiality law.[v]. Surprisingly, the mediation settlement agreement is not privileged unless the parties agree otherwise.
California
California’s Evidence Code[vi] provides, “No evidence of anything said or any admission made . . . in the course of or pursuant to, a mediation . . . is admissible or subject to discovery, and disclosure of the evidence shall not be compelled in any . . . noncriminal proceeding . . . .”[vii] The California Supreme Court has broadly interpreted these statutes as a nearly complete prohibition against judicially crafted exceptions to mediation confidentiality. The “no exceptions rule” has created problems with subsequent legal malpractice or other claims where mediation communications were sought as evidence.[viii]
Texas
Similarly, the Texas Alternative Dispute Resolution Statute contains broad confidentiality protection: “A communication relating to subject matter of a civil . . . dispute made by a participant in an alternative dispute resolution procedure is confidential, is not subject to disclosure and may not be used as evidence against a participant in any judicial or administrative proceeding.”[ix] However, mediation activities do not provide a blanket protection for all mediation-related materials. A Texas court held videotaped witness statements shown at mediation were discoverable under §154.073(c). In Re Learjet, Inc., 59 SW3d 842 (Tex. App. 2001) (holding videotape witness statement used at mediation were discoverable).https://casetext.com/case/in-re-learjet-inc
Massachusetts
The Massachusetts’ Mediation Confidentiality Statute is limited to “communications made in the presence of the mediator,” although some courts have expanded its coverage. “Mediator” is defined as a third party who enters into a written agreement with the parties and meets other requirements.[x] The statute may not apply if there is no written agreement or the mediator lacked the statutory qualifications.
Although the MA statute contains no exceptions, a Massachusetts court allowed evidence of mediation settlement offers in subsequent bad faith actions against insurers, finding the plaintiff waived the privilege by making the offer an issue in the case.[xi]A Massachusetts court also found that documents shared during the mediation portion of a “med/arb”[xii] proceeding were covered by the mediation privilege. The parties’ agreement to arbitrate if mediation was unsuccessful did not waive the privilege.[xiii]
New York
Surprisingly, New York does not have a state-wide mediation confidentiality statute. Rather, as noted in a recent report, “New York relies on local rules and optional confidentiality agreements.”[xiv] There are no common law or statutory confidentiality protections that govern court-mandated mediations in New York. Such mediations are governed by local court rules[xv] and parties’ confidentiality agreements. These rules vary from court to court and apply solely to mediations held under the auspices of the court to which the rules relate. The report suggests pre-mediation confidentiality agreements to enhance confidentiality under any applicable rules.
Mediation Confidentiality in Federal Courts
Mediation confidentiality in the federal courts is fragmented. Commentators have noted the need for improving predictability of confidentiality in federal court for decades. “T] the discrepancies among federal court rule and practices, . . . and the underdevelopment of federal mediation confidentiality law . . . are as important as . . .state-to-state variations in confidentiality.”[xvi] Unfortunately, progress in this area has been slow.
Federal courts apply state privilege law where state substantive law is the source of the rule of decision. Federal court litigants should be aware there is no “mediation privilege” in FRE 501. An earlier post on settlement confidentiality noted FRE 408 provides limited protection for settlement communications. No “Settlement Privilege” for Expert’s PowerPoint. Several federal district courts have recognized a “common law” mediation privilege for cases with no state law issues.[xvii] However, the scope of this privilege varies by court and may be limited. Mediation confidentiality analysis in federal court depends on vertical choice of law decisions between federal and state law, creating uncertainty, especially where the case includes federal and state law claims. The Alternative Dispute Resolution Act of 1998 authorized each federal district court to promulgate local court rules protecting mediation confidentiality.”[xviii] All federal district courts have adopted local ADR rules, which[ix] counsel should check before any mediation.[xx]
Takeaways
Knowing the status of mediation privilege in the jurisdiction where mediation takes place is critical. To clarify the ground rules of mediation, having a written mediation agreement, signed by all parties is recommended. Also, drafting a case-specific confidentiality agreement including non-party participants (e.g. insurance adjusters, consultants, experts) before mediation can provide additional protection.
[i] Georgia, Hawaii, Idaho, Illinois, Iowa, New Jersey, Ohio, South Dakota, Utah, Vermont and Washington
[ii] UMA § § 4, 5, 6: Privilege Against Disclosure; Admissibility; Discovery; Waiver and Preclusion of Privilege; Exceptions to Privilege.
[iii] §44.405, Fla. Stat. (2024), “The Mediation Confidentiality and Privilege Act.”
[iv] There are six listed exceptions to the privilege and parties may waive it. The Florida law provides all mediations with confidentiality, including court-ordered and non court-connected mediations,.
[v] The remedies are: equitable relief; compensatory damages; attorney’s fees, mediator’s fees and costs incurred in mediation; reasonable attorney’s fees and costs incurred in applying for remedies
[vi] Division 9, Chapter 2 §§1115 – 1129; https://codes.findlaw.com/ca/evidence-code/evid-sect-1119/
[vii] §1119(a). Subsections (b) and (c) extend the privilege to writings “prepared for the purpose of, in the course of or pursuant to, a mediation . . .” and “all communications, negotiations, or settlement discussions . . . in the course of a mediation . . . .”
[viii] Cassel v. Superior Court, 51 Cal. 4th 113 (Cal. 2011) (refusing to allow evidence of mediation communications between attorney and client in subsequent malpractice action )Cassel v. Superior Court (Wasserman, Comden, Casselman & Pearson, L.L.P.), 51 Cal.4th 113 | Casetext Search + Citator. See also, Phyllis Pollack, Mediations Are Supposed To Be Confidential . . . But Are They Really? (September 2015) https://www.advocatemagazine.com/writer/writers/phyllis-g-pollack
[ix] Tex. Civ. Prac. & Remedies Code, Title 7, Ch. 154, §154.073(a).CIVIL PRACTICE AND REMEDIES CODE CHAPTER 154. ALTERNATIVE DISPUTE RESOLUTION PROCEDURES (texas.gov).
[x] The mediator must have 30 hours of training in mediation and 4 years’ experience as a professional mediator or be accountable to a dispute resolution organization which has been in existence for at least 3 years or be appointed by a judicial or governmental entity. Mass. R. Evid. 514, Section 514 – Mediation Privilege, Mass. R. Evid. 514 | Casetext Search + Citator
[xi] Bobick v. U.S. Fidelity, 439 Mass. 652, 790 N.E.2d 653 (Mass. 2003). https://casetext.com/case/bobick-v-us-fidelity-1
[xii] Med/arb is an ADR process where the parties engage a neutral to serve initially as a mediator and then, if the dispute is not resolved by that process, as an arbitrator. Future posts will discuss med/arb and arb/med.
[xiii] Town of Clinton v. Geological Serv., No, No. 04-0462A (Mass. Cmmwl. Nov. 6, 2006).https://casetext.com/case/town-of-clinton-v-geological-serv
[xv] Sarah Boxer, Lessons on Mediation Confidentiality from New York State (CPR Speaks 7/16/24) https://www.cpradr.org/news/lessons-on-mediation-confidentiality-from-new-york-state, citing, Mediation Confidentiality in New York State, (report to the New York City Bar 6/24/24) https://www.nycbar.org/reports/mediation-confidentiality-in-new-york-state/
[xvi] E.g. Rules and Procedures of the Alternative Dispute Resolution Program, Rule 8(a). A copy of the New York County Supreme Court, Commercial Division ADR Rules may be accessed at https://www.nycourts.gov/LegacyPDFS/courts/comdiv/ny/PDFs/ADR-rules.pdf.
[xvi] Ellen E. Deason, Predictable Mediation Confidentiality in the U.S. Federal System, 17 Ohio State J. Dispute Resolution 239 (2002) https://kb.osu.edu/server/api/core/bitstreams/1a5bf10e-c01d-5b00-be0f-3dde5d4c9e59/content.
[xvii] Acqis, LLC v. EMC Corp., Civil Action No. 14-cv-13560 (D. Mass. Jun. 29, 2017)Acqis, LLC v. EMC Corp., Civil Action No. 14-cv-13560 | Casetext Search + Citator, citing United States v. Union Pac. R.R. Co., No. CIV06-1740FCDKJM, 2007 WL 1500551, at *6 (E.D. Cal. May 23, 2007); Microsoft Corp. v. Suncrest Enter., No. C03-05424JF (HRL), 2006 WL 929257, at *2 (N.D. Cal. Jan. 6, 2006); Sheldone v. Pa. Tpk. Comm’n, 104 F. Supp. 2d 511, 513 (W.D. Pa. 2000); Folb v. Motion Picture Indus. Pension & Health Plans, 16 F. Supp. 2d 1164, 1176 (C.D. Cal. 1998); In re RDM Sports Grp., Inc., 277 B.R. 415, 430 (Bankr. N.D. Ga. 2002). But see Molina v. Lexmark Int’l, Inc., No. CV0804796MMMFMX, 2008 WL 4447678, at *8 (C.D. Cal. Sept. 30, 2008).
[xviii] 28 U.S.C. § 652(d). http://www.congress.gov
[xix] This is a compendium of federal district court rules from the Dept. of Justice Archives. Some links may be outdated and no longer functional. 20******@us***.gov .”>https://www.justice.gov/archives/olp/compendium-federal-district-courts-local-adr-rules#:~:text=The%20Alternative%20Dispute%20Resolution%20Act,court’s%20local%20ADR%20rules%20here.&text=Please%20forward%20any%20rule%20updates,:% 20******@us***.gov .
[xx] E.g. Local Rule 83.6(m), U.S. District Court Northern District New York Local Rules | Northern District of New York | United States District Court (uscourts.gov).
.
Leave a Reply