by Michael Whalen
Special to The Daily Record
How many mediations have you attended which began with the mediator encouraging the parties to speak candidly, saying “Everything you say during this mediation is privileged and confidential.”
Certainly, statements made during mediations have long been “privileged” communications, not admissible at trial as admissions of a party. Until recently, however, it was not true that such communications were automatically “confidential” statements that could not be repeated to family members, neighbors or even the press, absent a separate confidentiality agreement by the parties. This all changed on July 1 when the Mediation Confidentiality and Privilege Act came into effect.
The Act applies to any mediations required by statute, court rule or order or which are conducted under the Act by express agreement of the parties or which are being facilitated by a mediator certified by the Supreme Court. The parties, however, may agree in writing that any or all of the Act will not apply. The Act reaffirms the “privilege” of a mediation party to refuse to testify and to prevent any other person from testifying in a subsequent proceeding about things said during a mediation. For the first time, along with that privilege, there is a statutory basis for confidentiality of such communications by any “mediation participant.”
Section 44.405(1) of the Act states that “Except as provided in this section, all mediation communications shall be confidential. A mediation participant shall not disclose a mediation communication to a person other than another mediation participant or a participant’s counsel.” Now mediation communications are not just privileged from disclosure in legal proceedings, they are truly confidential.
The new Act provides that a mediation participant who “knowingly and willfully discloses” a mediation communication “shall” be subject to remedies including: equitable relief, costs of the mediation including mediator’s fees and attorney’s fees for both the mediation and for claims brought pursuant to the Act. Some mediators are concerned that this new provision may spawn additional litigation in especially acrimonious cases.
The Act expressly exempts from the confidentiality requirements certain communications. As mentioned above, the confidentiality requirement can be waived by express agreement of the parties. Moreover, no privilege attaches to communications used to plan, commit or attempt to commit a crime or conceal an ongoing criminal activity or threaten violence. Information about child or elder abuse is not only exempt from the confidentiality protection but under certain circumstances there is an affirmative obligation on the part of the mediator to disclose such abuse to the appropriate authorities. The Act also excludes disclosures offered to report, prove or disprove, professional malpractice or misconduct occurring during the mediation for purposes of a subsequent legal action or licensing procedure.
Moreover, the Act excludes from the confidentiality and privilege protections any communications offered for the purpose of establishing or refuting legal grounds for voiding or reforming a settlement agreement reached during the mediation. While such legal grounds have long existed for setting aside settlements reached during a mediation, there is a concern among mediators that the codification of this exception may encourage the parties to challenge settlement agreements reached during mediations and to inject the mediator into the middle of those disputes. We must now await the Court’s interpretations as to the scope of the newly defined statutory privilege and confidentiality and the exceptions thereto. In the meantime both mediators and the attorneys need to be aware of the new ground rules for mediations.
Finally, the Act also provides immunity to mediators from liability for their service as mediators and for trainees fulfilling the requirements for certification by the Supreme Court. Immunity does not apply, however, if a mediator “acts in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.”
— Michael Whalen is a certified circuit and
family mediator and Of Counsel at
Bedell, Dittmar, DeVault, Pillans & Coxe, P.A.