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Week's Best Blogging
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Six years after mediation resulted in a settlement, the parties sought testimony from the mediator about whether the settlement had been achieved through economic duress. The mediator objected, but the U.K.’s Technology and Construction Court ruled that the mediator must testify in Farm Assist Limited v. Secretary of State for Environment, Food and Rural Affairs (No. 2), [2009] EWHC 1102 (TCC). The court concluded that mediation confidentiality can be waived by the court in the interests of justice. The court analyzed other applicable privileges and concluded that even if there is a mediation privilege, it may be waived by the parties without the consent of the mediator. The court sidestepped the mediation agreement, which provided that the mediator could not be called as a witness in any litigation relating to the dispute, reasoning that the issue of economic duress was distinct from the underlying dispute.
Farm Assist Limited v. Secretary of State for Environment, Food and Rural Affairs (No. 2), [2009] EWHC 1102 (TCC); Mondaq (July 8, 2009) (Subscription Required)
The legislature in Maine is considering the Uniform Mediation Act (UMA) in order to establish confidentiality for mediation communications, with specified exceptions. The legislation is intended to encourage greater use of mediation and generally follows the UMA language of the National Conference of Commissioners on Uniform State Laws. The UMA has been adopted thus far in the District of Columbia and ten states: Idaho, Illinois, Iowa, Nebraska, New Jersey, Ohio, South Dakota, Utah, Vermont and Washington state. Legislation to adopt the UMA is also currently being considered in Hawaii and Rhode Island.
Maine H.B. 968; LegAlert (April 2, 2009) (Subscription Required)
The federal district court in McNeil Sampson v. Lancaster School Board, (E. D. Pa.), found persuasive the reasoning of federal courts which have adopted a federal mediation privilege, which is discussed in detail, but based its decision on other grounds. In the underlying dispute, a mediation over discrimination allegations against a school system was attended by the school’s attorney who then prepared a memorandum to the school board about the mediation and the claimant’s perception of conspiracy and aggressive stance in the mediation, after which the claimant was fired. In the ensuing litigation, the claimant asserted that her termination was retaliation for participating in mediation and sought discovery related to the mediation. However, the court concluded that the claimant could not depose the school’s attorney and that the memorandum drafted about the mediation was protected under the attorney-client privilege. The court also noted that a state mediation privilege is not applicable in a federal case involving both state and federal claims.
McNeil Sampson v. Lancaster School Board, No. 05-6414 (E. D. Pa. Nov. 5, 2008); The Legal Intelligencer (March 11, 2009) (Subscription Required)
The Utah appellate court concluded in Moss v. Parr Waddoups Brown Gee & Loveless that the terms of a mediation confidentiality agreement were unambiguous and so required summary judgment in litigation seeking to enforce an alleged oral settlement agreement. While the confidentiality agreement was signed for mediation in one case, the parties also negotiated a second case during the mediation session, which plaintiffs argued was not covered by the confidentiality agreement. The appellate court found the broad language of the confidentiality clause to be unambiguous and reversed the district court’s denial of summary judgment, without reaching the provisions for mediation confidentiality offered by state statutes. Negotiations in the second case involved an additional plaintiff contacted by telephone who did not sign the confidentiality agreement, but the appellate court concluded that her testimony about the defendants’ alleged agreement to settle could not avoid the hearsay rule because the mediator was not an agent conveying a party-opponent’s admission.
Moss v. Parr Waddoups Brown Gee & Loveless, 2008 UT App 405 (Utah App., Nov. 6, 2008)
A West Virginia family law judge’s complaints against a Virginia mediator and an anti-divorce activist were dismissed by a West Virginia Bar committee. The non-lawyer activist had written a letter to the editor offering “friendly advice” about divorce, with which the judge disagreed, that may have been the basis for the judge’s complaint. The mediator is a former Virginia attorney who mediates in Virginia with West Virginia clients who come to him, noting that as a mediator he cannot give legal advice and they should seek legal advice from an attorney in their state. The mediator did not know any reason for the complaint, especially since the West Virginia Family Court has approved his clients’ mediated agreements.
West Virginia Record (November 14, 2008)
Effective January 1, attorneys need not be members of the Wisconsin bar in order to appear as advocates in mediations or arbitrations in the state, if the attorneys are handling the matter in another jurisdiction where they are members of the bar. No mention is made of any requirement for the mediators themselves. The Wisconsin amendments are based on the ABA Model Rules of Professional Conduct.
In re Petition of the State Bar to Amend Ch. 20 of the Wisconsin Supreme Court Rules, No. 06-06 (July 30, 2008)
A disbarred lawyer acting as a divorce mediator improperly presented himself as an attorney and conned dozens of victims into paying him large amounts of money. He was able to sidestep enforcement efforts for some time by hiding behind the confidentiality provisions of mediation, but eventually was convicted on 24 counts of theft and fraud, having billed 25 victims for $300,000. He would sometimes become romantically involved with the wives of divorcing parties, with one paying him $87,000 for “mediation” services. In addition to imprisonment, the ex-lawyer will be required to provide restitution from his assets which have been seized.
Arizona Republic (October 10, 2008); ADR Prof Blog (October 13, 2008)
A workers compensation claimant checked with his doctor after his employer stated in mediation that the doctor had made inconsistent recommendations about whether surgery was needed. When the doctor responded in writing that he had always urged surgery, the employer successfully moved to have the workers comp claims dismissed with prejudice due to breach of mediation confidentiality requirements. The Florida appellate court reversed dismissal of the claims as being too severe a sanction, discussed a range of appropriate sanctions, and remanded the case to the judge of compensation claims for further action.
Hill v. Greyhound Lines, Inc., No 1D07-1188 (Fla. App. 1st Dist., August 29, 2008)
The Minnesota Supreme Court is investigating a county judge who received a $63,000 discount on attorneys fees in his contentious divorce, and then appointed his attorney as mediator in cases that came before him. The judge’s current counsel asserts there was no connection between the discount and referrals. The investigation was begun after a complaint of special treatment by the judge’s ex-wife.
Minneapolis Star Tribune (August 28, 2008)
A solo practitioner may not include the word “mediation” in the lawyer’s firm name, according to an Ethics Advisory Panel of the Rhode Island Supreme Court. Even though certain trade names may be used by lawyers, the Panel explained that inclusion of “mediation” would be misleading since consumers might assume that the court has jurisdiction to regulate mediation as it does the practice of law, when in fact the court does not regulate private mediation practices.
Rhode Island Lawyers Weekly (August 11, 2008) (Subscription Required); Rhode Island Supreme Court Ethics Advisory Panel Opinion No. 2008-01
The California Supreme Court unanimously reversed the appellate court in Simmons v. Ghaderi, and concluded that a party is not estopped from asserting mediation confidentiality despite having litigated the details of the mediation for fifteen months. The case arose when Dr. Ghaderi gave her insurer permission to settle a medical malpractice case in mediation and then changed her mind after an oral agreement was reached, but before a written settlement agreement was signed. In a comprehensive decision analyzing mediation confidentiality, the Court held that no judicial exceptions to the statutory scheme are allowable, other than express waiver by the parties or when due process is implicated. The Court closely reviewed California’s statutory provisions and legislative history and noted that despite the legislature’s awareness that some bad faith conduct would go unpunished, it chose mediation confidentiality as paramount in order to promote mediation.
Simmons v. Ghaderi, S147848 (Cal., July 21, 2008)
A New York appellate court affirmed the appellate division’s upholding of a subpoena of a mediator in Hauzinger v. Hauzinger, stating that one party signed a waiver releasing the mediator from maintaining confidentiality and the other party waived confidentiality by seeking disclosure from the mediator. The mediator was not allowed to assert a qualified privilege, since the privilege was waived by the parties, but the court expressly did not rule on the applicable state statute.
Hauzinger v. Hauzinger, 43 A.D.3d 1289, 842 N.Y.S.2d 646 (NY App. 4th, Sept. 28, 2007), aff’d, 2008 NY Slip Op. 05781 (NY Ct. App., June 26, 2008)
Attorneys in disputes due to economic changes at their firm or communication problems will be offered free mediation by the Missouri Bar in a program beginning June 1, 2008. The process requires the consent of both parties and will be confidential unless serious ethical violations are uncovered. The Bar will only pay out of pocket costs for mediators, but more than 100 attorneys have volunteered.
Missouri Lawyers Weekly (April 28, 2008) (Subscription Required)
