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)

Idaho has enacted the Uniform Mediation Act (UMA), effective July 1, 2008, in order to establish confidentiality for mediation communications, with specified exceptions. The legislation is intended to encourage greater use of non-judicial mediation by providing confidentiality protections that are uniform with the recent rules adopted by the Idaho Supreme Court for court-annexed mediation. The Idaho legislation also incorporates the United Nations Model Law on International Commercial Conciliation, which is a supplement to the UMA for international commercial mediations, unless the parties agree otherwise. The UMA has now been adopted in the District of Columbia and ten states: Idaho, Illinois, Iowa, Nebraska, New Jersey, Ohio, South Dakota, Utah, Vermont and Washington state.

Idaho S.B. 1261

The North Carolina Business Court in Harco Harco National Ins. Co. v. Grant Thornton LLP, required the defendant to disclose the amount of insurance remaining under its liability policy immediately prior to mediation, even though the court did not require disclosure of all insurance information sought. The court relied on the requirement to mediate in “good faith” and held that refusing information about available insurance coverage was not good faith. The court noted that the North Carolina Supreme Court’s governing interpretation of the discovery rule, which requires disclosure of the “true facts” of insurance coverage, is broader than the analogous federal rule.

Harco National Ins. Co. v. Grant Thornton LLP, 2008 NCBC 5 (N.C. Bus. Ct. March 4, 2008)

In litigation over an alleged written settlement agreement, a New York court in Arben Corp. v. N.Y.S. Thruway Authority upheld the confidentiality of mediation and settlement discussions relating to the underlying dispute, but permitted post-mediation evidence from the mediator (who had become a paid consultant to the claimant, apparently to help enforce the purported settlement agreement) about whether or not a settlement agreement had been finalized and then breached. The court based its decision on a written agreement to mediate between the parties and on New York law (CPLR § 4547) which codifies the common law “settlement privilege.” The court concluded that negotiations concerning the underlying dispute between the parties were protected, but that CPLR § 4547 does not block efforts to prove the existence of a settlement agreement. The court explained that the policy goals of encouraging settlements requires the ability to prove when a settlement agreement has been reached.

Arben Corp. v. N.Y.S. Thruway Authority, No. 2008-036-308 (NY Ct. Cl., February 26, 2008)

A Norfolk mediator has lost his Virginia Supreme Court mediation certification as a result of signing forms stating that he had mentored or co-mediated with new mediators when he had not. The mediator, who founded the largest private mediation firm in Hampton Roads, has been decertified as a mentor for two years, and must re-apply for certification after nine months if he wishes to be recertified as a mediator. This is the first decertification of a mediator by the Virginia Supreme Court, although about 20 complaints have reached the formal stage of the Court’s mediation grievance process during the 14 years it has been in operation.

Virginia Lawyers Weekly (February 4, 2008) (Subscription Required)

Legislation has been introduced again this year in Alabama to add additional confidentiality protections to mediation, by providing that mediators in all mediations generally would not be required to testify or produce documents concerning mediation in any adversarial proceding. Adding this testimonial immunity is intended to increase public confidence in mediation.

Alabama S.B. 36; Alabama H.B. 30

Idaho recently introduced legislation to enact the Uniform Mediation Act (UMA) in order to establish confidentiality for mediation communications, with specified exceptions. Such legislation is intended to encourage greater use of non-judicial mediation by providing confidentiality protections that are uniform with the recent rules adopted by the Idaho Supreme Court for court-annexed mediation. The Idaho legislation also incorporates the United Nations Model Law on International Commercial Conciliation, which is a supplement to the UMA for international commercial mediations, unless the parties agree otherwise.

Idaho SB 1261

Despite acknowledging error and offering a formal apology, counsel for plaintiff in Williams v. Johanns was found in civil contempt by the U.S. District Court for the District of Columbia for filing a pleading containing statements made in mediation. The court held a show cause hearing and ultimately imposed a nominal fine, noting the importance of confidentiality in the mediation process.

Williams v. Johanns, 2008 WL 36633 (D.D.C., January 2, 2008) (Subscription Required)

The Utah Supreme Court in Reese v. Tingey Construction reversed the trial court’s order requiring counsel for a party to be deposed to determine whether the parties had orally agreed to settle during mediation, based on state law prior to the Utah Uniform Mediation Act taking effect on May 1, 2007. The Court emphasized the importance of confidentiality to the mediation process, noted that the limited statutory exceptions to mediation confidentiality were not met, and rejected the lower court’s notion that mediations contain both confidential and non-confidential portions and that counsel could be required to testify about the non-confidential aspects. The Court stated that parties are free to enter into oral agreements during mediation, but that a written agreement – even if just an email exchange – is needed for a party to obtain judicial assistance enforcing the settlement agreement, since the mediation is confidential. The Court criticized both the trial court and parties for freely discussing mediation communications in the litigation, sealed portions of the record containing confidential mediation information, and ordered any trial judges who had reviewed confidential information to recuse themselves from further proceedings.

Reese v. Tingey Construction, No. 200060594 (Utah, February 1, 2008)

While emphasizing the importance of mediation confidentiality and urging caution, the Georgia Supreme Court in Wilson v. Wilson created an express exception to mediation confidentiality when a party tries to void a signed settlement agreement by asserting lack of mental competence. Although the divorcing couple who mediated without counsel present signed an agreement stating that all aspects of the mediation would be privileged and “absolutely confidential,” the Court affirmed that it was permissible for the mediator to testify about the mental competence of the party who challenged the settlement agreement by asserting that he was depressed, bipolar, on several medications and did not remember signing the settlement or know it was legally binding. The Court stressed that there was no testimony on the substance of the mediation or specific communications and that testimony was needed in order to protect the integrity of the mediation process and avoid an unjust result. The Court found it helpful that some courts treat an assertion that a mediated agreement is unenforceable as a waiver of confidentiality, which is in line with an exception in the Uniform Mediation Act (which has not been adopted in Georgia). The Court also noted that it was permissible for the mediator to draft the settlement agreement for the parties.

Wilson v. Wilson, No. S07F1201 (Ga. Sup. Ct., Nov. 21, 2007) (Subscription Required)

The New Jersey Supreme Court adopted a new evidentiary Rule 519 on “Mediator Privilege” in September which shields mediation communications and allows a mediator to refuse to disclose a mediation communication and to prevent anyone else from disclosing a mediation communication of the mediator, with certain exceptions. The language in the Rule is from the New Jersey Uniform Mediation Act which was adopted in November 2004.

New Jersey Rule of Evidence 519 (Effective July 1, 2008); Summary