Article: The Path Toward A Federal Mediation Privilege

We came recently came across “The Path Toward A Federal Mediation Privilege: Approaches Toward Creating Consistency for a Mediation Privilege in Federal Courts,” written by Joseph Lipps and published by the American Journal of Mediation. Here is an excerpt:

In commencing a mediation, the mediator provides an opening statement promising confidentiality. This promise however is wrought with a complex legal analysis where federal courts have contradicted one another. The courts’ inconsistent analyses have removed predictability with respect to confidentiality during mediation. Although research has not proven a direct link between success in mediation and confidentiality, judges and scholars have accepted that confidentiality is one of the most crucial components to the mediation process. In order to weigh in favor of excluding mediation communications from discovery and evidence, courts must find that trust and confidentiality are crucial to mediation. In determining whether to adopt a federal mediation privilege, consistency is crucial to the process. The federal courts’ varied and inconsistent interpretations of the existence of a mediation privilege hinder both the progress of mediation, and the movement for consistency with the Uniform Mediation Act. The current jurisprudence surrounding mediation leaves mediators unable to comprehensively ensure a mediation privilege. Attorneys are unable to advise their clients on the future effect of mediation, potentially making clients unwilling to mediate.

Similar to the attorney-client relationship, there is an important distinction between confidentiality and privilege; this distinction is often conflated. In professional relationships and in the context of mediation, confidentiality is a promise by the mediator to not voluntarily disclose any information communicated during mediation. Privileges however are meant to avoid involuntary testimony in court concerning communications during mediation. Courts and the legislature cautiously enact privileges, because they exclude crucial information from the discovery process and the courtroom. These exclusions hinder the courts’ ability to reach the most just result. Federal Rule of Evidence 408 and its state law counterparts exclude communications during settlement negotiations from evidence in court if the communications prove liability. A privilege is much broader than this evidentiary exclusion. A mediation privilege prevents parties from obtaining information from mediation in discovery. Privileges infringe on the trier-of-fact’s ability to reach a decision, and the courts’ ultimate goal of reaching the truth. Despite the limitations that a privilege imposes on courts, many states have followed the Uniform Mediation Act’s lead in adopting a mediation privilege. The state legislatures which have adopted the UMA believe the importance of trust in mediation outweighs any evidentiary benefit. Although academics and state legislators have embraced the move toward adopting a mediation privilege, federal courts have been less willingness to implement a mediation privilege, resulting in inconsistencies and a lack of predictability.

The federal courts’ development of a mediation privilege and its contours has been gradual and restrained. One study has shown, the reason for this slow development in the law is due to courts and practitioners, who continually ignore and fail to raise the issue of a mediation privilege. In approximately one third of all the decisions in the study’s database, courts admitted evidence from communications during mediation. Surprisingly, in many of the courts’ decisions, the courts admitted evidence without a party raising the issue of a mediation privilege, or the court raising the issue sua sponte. As attorneys and judges neglect to address the issue of the mediation privilege, courts miss opportunities to rule on this complex and contentious area of law. The future of the mediation privilege has substantial implications for the future of mediation. The courts should adopt a mediation privilege to ensure predictability and integrity in the mediation process.

You may download the full article (free of charge) here.