by Marcia S. Cohen
Black’s Law Dictionary defines privileged communications as “those statements made by certain persons within a protected relationship . . . which the law protects from forced disclosure on the witness stand.”1 The term “mediation privilege” refers to the protection from disclosure of confidential communications in mediation.2 Though many legal scholars have argued that enactment of an evidentiary privilege against disclosure of information learned during a mediation is unnecessary, as confidentiality of such information is protected by contract and by state or federal evidentiary rules, others have reasoned that these methods are insufficient to further the goals of mediated dispute resolution. As to contractual promises of confidentiality, it has been noted that confidentiality agreements entered into pursuant to mediation will not prevent a nonparty from seeking disclosure of information.3 As to evidentiary rules, the limited scope of uncertain application of Rule 408, which excludes evidence related to compromise negotiations, leaves mediation communications vulnerable because it does not require exclusion of evidence otherwise discoverable, nor prevent a participant from voluntarily disclosing information.4
The Benefits of Mediation Privilege
In her article on mediation privilege,5 Anne M. Burr delineates and explains four main advantages of a mediation privilege: candor, fairness, privacy, and neutrality. A privilege against disclosure of confidential mediation communications allows the parties to speak freely, admitting facts they would not concede without the assurance of confidentiality. Later use of information learned at a mediation would be unfair to a party who disclosed such information trusting that it would not be used against him or her if mediation failed to settle the dispute. The guarantee of privacy concerning sensitive information often motivates parties to resolve their disagreements through mediation. And if there is any chance that a mediator’s neutrality can be compromised by compelling his or her testimony regarding matters disclosed during mediation, the parties would feel less comfortable in confiding delicate matters to him or her in caucus.
The Uniform Mediation Act
That the benefits of enacting a privilege against disclosure of confidential communications in mediation outweigh any detriments is attested to by the creation of the Uniform Mediation Act,6 a centerpiece of which is its inclusion of a mediation privilege.
Section 4(a) provides that “a mediation communication is privileged . . . and is not subject of discovery or admissible in evidence in a proceeding unless waived or precluded as provided by Section 5.” Subsection (b) describes the scope of the privilege. A party to a mediation may refuse to disclose, and may prevent any other person from disclosing a mediation communication of any participant. A mediator may refuse to disclose, and may prevent any other person from disclosing a mediation communication of the mediator. A nonparty participant may refuse to disclose, and may prevent any other person from disclosing a mediation communication of the nonparty participant. Subsection (c) contains an exception for “evidence or information that is otherwise admissible or subject to discovery.” In the Reporter’s Notes, the drafters explain that “it is the communication that is made in a mediation that is protected by the privilege, not the underlying evidence giving rise to the communication.”
Section 5 of the Uniform Mediation Act sets forth conditions for the waiver or preclusion of the privilege. Subsection (a) provides that the privilege may be waived in a record or orally during a proceeding if it is expressly waived by all parties. In the case of a mediator’s privilege, it is expressly waived by the mediator; and in the case of a nonparty’s privilege, it is expressly waived by the nonparty participant. Subsection (c) precludes a person who uses a mediation to plan, attempt to commit or commit a crime, or to conceal an ongoing crime, from asserting the privilege. Significant is the requirement that all parties must agree to the waiver before a party, mediator, or nonparty participant can testify regarding the mediation communication.
Exceptions to the privilege are contained in §6. An agreement evidenced by a record signed by all parties to the agreement may be disclosed in a subsequent court proceeding convened to determine, for example, whether the terms of the settlement agreement had been breached. There is no privilege for a communication that is available to the public, either pursuant to an open records law or made during a mediation required to be open to the public. No privilege exists for a threat to do bodily injury, to commit a crime of violence, or for the purpose of other criminal activity. A complaint of professional misconduct or malpractice against a mediator, a party, a nonparty participant, or a representative of a party is not privileged. Other exceptions are created for evidence of abuse, neglect, abandonment or exploitation when a child or adult protective services agency is a party.
Section 7 prevents the mediator from making a report to a court, administrative agency, or other authority that may rule on the dispute, except that a mediator may disclose that the mediation has occurred, has terminated, whether a settlement was reached, and who attended. This is not, strictly speaking, a privilege, but is rather a prohibition on disclosure. Under this section, mediators are permitted, however, to report to the appropriate authorities any threats of harm to others.
State Law Adoption of the Mediation Privilege
All states except Delaware have enacted some form of mediation privilege. Florida amended Ch. 44 of the Florida Statutes in 2004 to create the Mediation Confidentiality and Privilege Act, §44.401 et seq.
Section 44.405(2) provides that “a mediation party has a privilege to refuse to testify and to prevent any other person from testifying in a subsequent proceeding regarding mediation communications.” “Mediation party” is defined in §44.403(3) as “a person participating directly, or through a designated representative, in a mediation and a person who: (a) is a named party; (b) is a real party in interest; or (c) would be a named party or real party in interest if an action relating to the subject matter of the mediation were brought in a court of law.” Thus, a mediation party privileged to refuse to testify and to prevent others from testifying would appear to include the mediator, the parties, their designated representatives (who may be attorneys), as well as a person perhaps not present at the mediation, but who may be a real party in interest. This is arguably a less expansive definition than that given for “mediation participant” in subsection (2): “a mediation party or a person who attends a mediation in person or by telephone, video conference, or other electronic means.” If a party brings his or her spouse to the mediation, for example, the spouse would be a mediation participant, but not a mediation party privileged to refuse to testify. The party who brought the spouse to the mediation, however, can prevent the spouse from testifying under the statute, as can the opposing party.
A “mediation communication” about which a mediation party can refuse to testify is defined in §44.403(1) as “an oral or written statement, or nonverbal conduct intended to make an assertion, by or to a mediation participant made during the course of a mediation, or prior to mediation if made in furtherance of a mediation. The commission of a crime during a mediation is not a mediation communication.”
Various exceptions to the mediation privilege are enumerated in §44.405(4), including “a signed written agreement reached during a mediation, unless the parties agree otherwise” and a mediation communication for which the privilege has been waived by all parties. Other exceptions include communication that is used to plan, commit, or attempt to commit a crime; conceal ongoing criminal activity, or threaten violence; requires a report mandated by statute, relates to professional malpractice during the mediation; is offered for the purpose of voiding or reforming a settlement agreement reached during the mediation; or relates to professional misconduct occurring during the mediation.
Remedies provided in §44.406 for disclosure of a mediation communication in violation of §44.405 include equitable relief, compensatory damages, attorneys’ fees, mediators’ fees, and mediation costs.
The Mediation Privilege in Federal Law
• ADRA —The Administrative Dispute Resolution Act of 1996 (ADRA)7 provides an express privilege from disclosure of mediation communications when a federal agency is a party.
Section 574 of the ADRA8 prohibits the mediator and the parties from any voluntary or compelled disclosure of mediation communications in any type of case or proceeding, with certain exceptions.
The ADRA defines “dispute resolution communication” as any oral or written communication prepared for the purposes of a dispute resolution proceeding (or mediation), including any memoranda, notes, or work product of the neutral (or mediator), parties, or a nonparty participant.9 The term “in confidence” is defined as information provided with the expressed intent that the source of the information not be disclosed, or under circumstances that would create the reasonable expectation on the part of the source that the information will not be disclosed.10
Under the ADRA, a neutral11 is prohibited from disclosing, either voluntarily or through discovery or compulsory process, any dispute resolution communication or any communication provided in confidence, except in four specific circumstances:
1) All parties to the mediation, or a nonparty who provided the communication, and the neutral consent to the disclosure in writing; or
2) The communication has already been made public; or
3) The communication is required by statute to be made public, and no other person but the neutral is reasonably available to make the disclosure; or
4) A court determines that disclosure is necessary to prevent an injustice, establish a violation of law, or prevent serious harm to the public health or safety.
Similar exceptions apply to the prohibition on disclosure by a party:12
1) The communication was prepared by the party seeking disclosure; or
2) All parties to the proceeding consent to the disclosure in writing; or
3) The communication has already been made public; or
4) The communication is required by statute to be made public; or
5) A court determines that disclosure is necessary to prevent an injustice, establish a violation of law, or prevent serious harm to the public health or safety; or
6) Disclosure of the communication is relevant to determining the existence or meaning of an agreement or award resulting from a dispute resolution proceeding, or enforcement of it; or
7) Except for communications generated by the neutral, the communication was provided or available to all parties to the proceeding.
If a demand is made on the neutral for disclosure of a communication through discovery or other legal process, the neutral is required to make reasonable efforts to notify the parties and affected nonparty participants of the demand. Parties and affected nonparties have 15 days after notification to offer to defend a neutral’s refusal to disclose. If no offer to defend is made, parties and affected nonparties are deemed to have waived all objection to disclosure.13
After the adoption of the ADRA, concerns arose regarding disclosure of confidential mediation communications under the Freedom of Information Act (FOIA).14 To address these concerns, Congress in 1996 amended the act by inserting a new subsection (j) into §574 of the ADRA specifically exempting disclosure of mediation communications from the FOIA. The ADRA now provides that a dispute resolution communication between a neutral and a party which may not be disclosed under §574 shall also be exempt from disclosure under §552(b)(3) of the FOIA.
• Nonadministrative Federal Mediation Privilege — When a federal agency is not a party to a mediation, the existence of a federal mediation privilege is less certain. Most, but not all,15 federal district courts agree that such a privilege should exist, though no federal courts of appeal have ruled on this issue.
The leading federal case holding that mediation communications are protected against forced disclosure was Folb v. Motion Picture Industry Pension & Health, 16 F. Supp. 2d 1164 (C.D. Cal. 1998). The Folb court first looked to the U.S. Supreme Court case of Jaffee v. Redmond, 518 U.S. 1 (1996), which created a psychotherapist-patient privilege for the ground rules under which a new privilege may be adopted. The court in Jaffee acknowledged that it was creating an exception to the general rule disfavoring testimonial privileges, but found that such privileges may be justified by a “public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth.”16 The Folb court cited Jaffee’s four factors for finding a rule of privilege justified.
To determine whether an asserted privilege constitutes such a public good, in light of reason and experience, the Court must consider (1) whether the asserted privilege is “rooted in the imperative need for confidence and trust”; (2) whether the asserted privilege would serve public ends; (3) whether the evidentiary detriment caused by exercise of the privilege is modest; and (4) whether denial of the federal privilege would frustrate a parallel privilege adopted by the states.17
Finding that a privilege protecting mediation communications from involuntary disclosure was justified under the Jaffee factors, the court in Folb held that the mediation communications at issue in that case were privileged from disclosure.
Another case recognizing a federal mediation privilege was Sheldone v. Pennsylvania Turnpike Com’n, 104 F. Supp. 2d 511 (W.D. Pa. 2000). The authority for such a privilege was held to be Federal Rule of Evidence 501, which provides that “the privilege of a witness, person, government, [s]tate, or political subdivision . . . shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.” The Sheldone court cited the four relevant factors stated in Jaffee to find that a mediation privilege should protect the mediation communications and documents in dispute.
The ruling in Sheldone was buttressed by reference to the district court’s local rule, which protects from disclosure all written and oral communications made in connection with or during any mediation conference. The court concluded that all the Jaffee factors had been met and that the mediation privilege recognized created a “public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.”18
At least one Florida court has protected mediation communications from disclosure in reliance on its own local rule. The magistrate judge in EEOC v. Northlake Foods, Inc., 411 F. Supp. 2d 1366 (M.D. Fla. 2005), refused to allow the EEOC to disclose the amount of the settlement between the parties, despite the EEOC’s argument that its internal regulations obligate it to disclose the amount of private settlements it secures for employees. The court concluded that “[t]he public policy considerations cited by EEOC do not trump the clear directive of this court’s [l]ocal [r]ule regarding confidentiality of mediation proceedings.”19
• The Ombudsman Privilege — Most employment disputes that are litigated are mediated, often by court order, by court-certified mediators. In these mediations, federal or state privileges relating to certified mediators are applied. But an increasing number of employers now engage the services of ombudspeople to resolve workplace problems before they become lawsuits or charges, and courts have been more reluctant to extend the mediation privilege to ombuds communications.
An ombudsperson is a confidential, designated neutral who serves as a communications channel, complaint handler, and dispute resolver in the worksite. There are two general categories of ombuds: the internal organizational ombudsperson (who is employed by the company to resolve disputes), and the external or outside organizational ombudsperson (who works on contract as an ombuds service provider). Both work under the same general precepts, key among which are neutrality and confidentiality.
Organizational ombudspeople typically will not answer questions from anyone, including senior management, about those with whom they may have had contact, maintaining their privacy, unless given permission to speak for the purpose of resolution of the dispute. It is the position of many professional ombudspeople that “there is or should be a privilege which belongs to the office and not to any visitor to the office — thus no visitor to the office may waive privilege to ask an ombudsman to testify.”20
The Ombudsman Association,21 a large group of professional ombudspeople, has a code of ethics which provides that conversations with ombudspeople are privileged. But maintaining the ombudsman privilege in court has often been problematic.
The first federal case in which an ombudsman privilege under Fed. R. Evid. 501 was recognized was Shabazz v. Scurr, 662 F. Supp. 90, 92 (S.D. Iowa 1987). Shabazz was not an employment case,22 but the creation of the privilege in that case was relied on by the court in Kientzy v. McDonnell Douglas, 133 F.R.D. 570 (E.D. Mo. 1991),23 a sex discrimination case. The plaintiff in Kientzy argued that the company ombudsman received information regarding her termination from employees of the company that was relevant to her cause of action in that such information may evidence discriminatory animus in the company’s decision to terminate her. She also argued that the ombudsman program was a company procedure for appealing an adverse employment action, so the ombudsman participated in the decision to terminate her.
The Kientzy court disagreed. Finding that the relationship between the ombudsman office and defendant’s employees and management was worthy of societal support, and that Shabazz had already recognized an ombudsman privilege, the court ruled that the ombudsman’s testimony could not be compelled.
The opposite view was taken by the Eighth Circuit Court of Appeal in Carman v. McDonnell Douglas Corp., 114 F.3d (8th Cir. 1997), an age discrimination case. The Carman court began with the proposition that “evidentiary privileges ‘are not lightly created.’”24 Though conceding that fair and efficient alternative dispute resolution techniques benefit society and are worthy of encouragement, the court remarked that far more is required to justify the creation of a new evidentiary privilege. In refusing to recognize a privilege for the corporate ombudsman, the court in Carman explained that since the ombudsman would still be able to promise confidentiality in most circumstances, the creation of a privilege was unnecessary. To justify a privilege, the company must first establish that society benefits in some significant way from the particular brand of confidentiality that the privilege affords in order to overcome the strong presumption in favor of disclosure of all relevant information.
The rationale of Carman was expressly adopted in Solorzano v. Shell Chemical Co., 2000 U.S. Dist. LEXIS 12072 (E.D. La. 2000). In that case, the court assumed that the Louisiana Mediation Act arguably created a privilege for ombudsmen, but found it did not apply in this employment discrimination case in which the plaintiff had claims under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act, both federal statutes. Citing the holding in Carman, the magistrate judge in the Solorzano case refused to recognize a federal ombudsman privilege.
A privilege against disclosure of mediation communications has been recognized under the Uniform Mediation Act and the Administrative Dispute Resolution Act. Almost all state mediation laws provide such protections. Although no federal circuit court of appeal has yet recognized the existence of the mediation privilege, most federal district courts that have faced the issue have approved the protection of mediation communications as a public good. Mediations by private corporate ombudspersons, however, have not fared as well in the courts, perhaps due to the fact that they are not officers of the court and generally operate only in the workplace. Though by no means unanimous, federal courts appear to be headed in the direction of the establishment of a federal mediation privilege.
1 H.C. Black, Black’s Law Dictionary (5th ed. 1979).
2 Eric Green, A Heretical View of the Mediation Privilege, 2 Ohio State J. on Dispute Resolution 1, 2 (Fall 1986).
3 Alan Kirtley, The Mediation Privilege’s Transition from Theory to Implementation, J. of Dispute Resolution 1, 10-11 (1995).
4 Anne M. Burr, Confidentiality in Mediation Communications: A Privilege Worth Protecting, Dispute Resolution J. 66, 67 (Feb./Apr. 2002).
5 See note 3.
6 National Conference of Commissioners on Uniform Laws, Uniform Mediation Act (Aug. 2001). The act was adopted by the ABA House of Delegates in February 2002.
7 Pub. Law 104-320, 5 U.S.C. §571 et seq.
8 5 U.S.C. §574.
9 5 U.S.C. §571(5).
10 5 U.S.C. §571(7).
11 5 U.S.C. §574(a).
12 5 U.S.C. §574(b).
13 5 U.S.C. §574(e).
14 5 U.S.C. §552.
15 Molina v. Lexmark International, Inc., 2008 U.S. Dist. Lexis 83014 (C.D. CA 2008) (questioned the existence of a federal common law mediation privilege, finding the Folb decision limited to circumstances where a third party who did not participate in the mediation sought discovery of the mediation materials).
16 Jaffe, 518 U.S. at 9.
17 Folb, 16 F. Supp. 2d at 1171.
18 Sheldone, 104 F. Supp. at 515-16.
19 Northlake Foods, 411 F. Supp. 2d at 1369.
20 Mary P. Rowe, Options, Functions and Skills: What an Organizational Ombudsman Might Want to Know, Negotiation J. (April 1995).
21 The Ombudsman Association, 5521 Greenville Avenue, Suite 104-265, Dallas, TX 75206, http://www.ombuds-toa.org.
22 Shabazz was brought under 42 U.S.C. §1983 and concerned the death of a state prisoner. A former prison ombudsman was prevented from testifying about confidential statements made to him in his ombudsman capacity.
23 A previous employment case had recognized a privilege for a corporate ombudsman. See Roy v. United Technologies Corp., Civil No. 89-680 (JAC) (D. Conn. May 29, 1990).
24 Carman, 114 F. 3d at 793, citing United States v. Nixon, 418 U.S. 683, 710 (1974).
Marcia S. Cohen has been certified by the Florida Supreme Court as a circuit civil mediator since 1991 and completed a Supreme Court certified arbitration training program in 1995. She also practices labor and employment law in St. Petersburg, and serves of counsel to Cimadevilla Avocats in Paris, France.