By Steven G. MehtaSteve Mehta

The question of whether someone can commit malpractice during mediation is recently gaining quite a bit of traction.  The answer to that question lies in the philisophial riddle “If a tree falls in a forest and no one is around to hear it, does it make a sound?”

In mediation in many states, and Specifically in California, the answer would be no, there is no sound when the tree falls down.  That is because mediation confidentiality has been strictly interpreted in California to prevent any testimony by a mediator or the parties to actions that took place during the mediation.

The ADR Prof Blog recently identified an  Oregon case that addresses that very issue.  Here’s what they had to say:

Not long ago, a federal court in Oregon gratned summary judgment for the defendants in a legal malpractice claim.  The case highlights the stakes involved in expansive mediation privileges.  Or put differently, the case highlights the tradeoffs of having limited exceptions to a mediation privilege.  For anyone looking for a good set of modern facts to use in a Mediation class on confidentiality, this one will probably serve you well.

Fehr v. Kennedy, 2009 WL 2244193 (D.Or.).

Roughly speaking, the Fehrs were defendants in an action brought by ASH, an LLC of which they were a part.  ASH alleged that the Fehrs breached their fiduciary duties to the LLC, engaged in fraud, and in a civil conspiracy.  The case went to mediation, and no settlement resulted.  The case then went to a bench trial, and the court awarded ASH a judgment in excess of $300,000 against the Fehrs.

The Fehrs then brought suit against John Kennedy, the attorney who represented them in the ASH v Fehr lawsuit.  The Fehrs alleged that Kennedy had “failed to advise them of the risk of going to trial and specifically discounted and contradicted the mediator’s assessment of the likelihood of success of ASH’s claims and the consequences of a loss at trial.”

Read More by clicking here.

California courts have not expressly addressed this issue.  However, more and more courts are evaluating this issue similarly.  See for example, a New York court protected the mediation confidentiality as reported by a New York attorney Andrew Bluestone in his blog.

The concern regarding this issue is that if mediation confidentiality is breached by a claim of malpractice, it would not only address the parties at issue, but would necessarily affect the other party in the mediation.  How can someone talk about malpractice without addressing what was said by the other side?  Take for example, a claim that the attorney falsely told the client about the risks of trial, and that the truth was only discovered in mediation.  Necessarily, some of that information regarding the risks of trial would probably be coming from the other side.  In order for the legal malpractice claimant to prove his or her case, she would need to prove what the mediator stated during mediation. Much of that information that the mediator knows about the case is coming from the opposite side.  As such, allowing an exception for legal malpractice would potentially breach the confidence of both sides of the participants to the mediation.

On the other hand, allowing mediation confidentiality to remain would potentially prevent legal malpractice claims from being brought. Moreover, allowing such confidentiality could also encourage attorneys to hide their potential malpractice during mediation so as to prevent any evidence being raised.

In my opinion, the confidentiality of the mediation process and the need for a mediator to be able to gain the trust of both sides through such confidentiality outweighs the harm that may occur to the potential plaintiffs when they are unable to prove their malpractice case. Similar analysis has been conducted in the context of attorney-client privilege where certain claims may be proven by resorting to the attorney-client communications but are nevertheless protected and confidential because of the greater benefit in protecting the attorney-client privilege.

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