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Mediation Confidentiality Redux

by Phyllis Pollack
August 2009

From the Blog of Phyllis G. Pollack.

Phyllis  Pollack

      In August 2007,   I wrote a blog on a then newly issued Ninth Circuit opinion, Babasa v. Lenscrafters, Inc.,  498 F.3d 972 (9th Cir. 2007) (“Babasa”) in which the Court held that in order to determine whether removal jurisdiction existed under 28 U.S. C. §1446(b), mediation confidentiality would not attach to a letter written in preparation for  mediation  which explained the nature and extent of damages, and thus, the amount in controversy for purposes of determining federal jurisdiction under 28 U.S.C.§ 1332.

      In holding that the letter was admissible (even though created for mediation) in order to determine if the removal petition was timely filed (which the court held it was not),  the Court gave extremely short shrift to the principle of mediation confidentiality.

      While this ruling disturbed me at the time, I did not research this apparent abrogation  of  this paramount principle of mediation until recently when a colleague requested that I write an article on the topic of mediation confidentiality in federal courts. The article will appear in the inaugural issue of The Federal Bar Association ADR Section’s Newsletter, The Resolver  appearing  in September 2009. (To get a sneak preview, click on the following: mediation-confidentiality

      What I learned from my research is that one must be extremely careful in federal court mediations.  While Congress, indeed, passed the Alternative Dispute Resolution Act of 1998, Pub. L. No. 105-315, 112 Stat. 2998 (105th Cong, 2nd Sess.)(October 20, 1998) codified at 28 U.S. C. §§ 651- 658, mandating, among other things, that each district and appellate court enact local rules providing for confidentiality in alternative dispute resolution processes, the courts interpret this mandate very narrowly. Quite often, they will not apply it when considering petitions for removal or when the issue involves information or documents gleaned during settlement discussions held  after the conclusion of the actual mediation session or to be used for purposes other than settlement.

      Moreover, a very few courts have created a common law “mediation privilege” which differs from “mediation confidentiality.”  As explained by United States District Judge Margaret Morrow in Molina vs. Lexmark International, Inc., 2008 U.S. Dist. Lexis 83014, 77 Fed. R. Evid. Serv. (Callaghan) 905 (C. D. Cal., September 30,   2008):

      “Confidentiality” refers to a duty to keep information secret while “privilege” refers to protection of information from compelled disclosure”…  Communications are confidential when the freedom of the parties to disclose them voluntarily is limited; they are privileged when the ability of third parties to compel disclosure of them, or testimony regarding them, is limited. (Citation omitted). Id. at 35.

      Because the policy in federal court is the “the public … has a right to every man’s evidence…” (Jaffee vs. Redmond, 518 U.S. 1, 9 (1996)), the federal courts tend to favor admitting evidence rather than excluding it whether the attempted exclusion is based on ‘mediation confidentiality’,  the federal common law “mediation privilege” or Fed. R. Evid. 408  or 501. These four principles create quite a tense interplay in the case law. Which one wins is determined solely and strictly on  a case by case basis.   
From my research and analysis, I learned that a party attending mediation in federal court must be extremely leery: “mediation confidentiality” in federal court is often oxymoronic.

      …. Just something to think about.


Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as well as their own needs better than any mediator or arbitrator. She does not impose her views or make decisions for the parties. Rather, Phyllis assists the parties in creating options that meet the needs and desires of both sides.  When appropriate, visual aids are used in preparing discussions and illustrating possible solutions. On the other hand, she is not averse to being proactive and offering a generous dose of reality, particularly when the process may have stalled due to unrealistic expectations of attorney or client, a failure to focus on needs rather than demands, or when one or more parties need to be reminded of the potential consequences of their failure to reach an agreement.

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