Confidentiality in Mediation: How Broad?

Business Conflict Blog by Peter Phillips

One doesn’t ordinarily look to California for exceptions to the broad scope of mediator confidentiality, but in Neighborhood Assistance Corporation v. First One Lending Corporation (C.D. Cal. Jan. 29, 2013) we have one.

The claim alleged violations of the Lanham Act by the defendant corporation, which was alleged to have misrepresented its affiliation with plaintiff and damaged both plaintiff and its clients. An issue arose as to the relationship of an individual defendant, Vescera, to the corporate defendant, with allegations of breach of the corporate form and use of corporate assets for personal purposes. Vescera asserted that not he but another individual, Mariner, was the head of the corporation.

In support of his defense, Vescera sought to introduce evidence that Mariner attended a mediation in the matter and introduced himself to those present as “Vice-President of Operations.” Vescera argued that this statement was discoverable because it was not a “mediation communication.” Plaintiff objected on the ground that, by the plain reading of the relevant general order, “anything that happened or was said” at the mediation is confidential.

Not so, said the court. The full language of Section 9.1 of the General Order of the Court controlling the question protects anything that is said “relating to the subject matter of the case in mediation.” Introducing yourself does not relate to the subject matter of the mediation, held the court, and the statement is discoverable.

(Mind you, if it didn’t relate to the subject matter of the mediation, why are the parties so adamantly arguing over it?)

In any event, next time you ask for pasta when lunch orders are taken at the mediation, think about its ramifications….

                        author

F. Peter Phillips

F. Peter Phillips is a commercial arbitrator and mediator with substantial experience providing consultation on the management of business disputes to companies around the globe. A cum laude graduate of Dartmouth College and a magna cum laude graduate of New York Law School, Mr. Phillips served for nearly ten years… MORE >

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