The ODR Record: Discovery, Privacy and Privilege

Cooking Up Trouble

 

Plaintiff Mary Clark sued her current employer, Cooking, a major national chain of restaurants, for sex discrimination.  Clark alleges that she did not receive a promotion from line cook to back-of-house manager because she is a woman in the “man’s world” of restaurant management.  Clark states that she worked at Cooking as a line cook five years more than the male line cook who received the promotion and the significant pay raise associated with the promotion.  Cooking claims that the person promoted was better qualified than Clark because he had gone to the local culinary school and received an Associate’s Degree in the culinary arts while Clark has no formal education beyond high school.

 

Clark sued Cooking in federal court under Title VII for sex discrimination.  The judge required that the parties go to mediation.  The mediator, Jeff Dale, engaged in a series of e-mail communications between the parties in order to help ready the parties for mediation.  Oddly, the mediator did not send the e-mails messages to all parties, but individually to each party.  Because of this, he had slightly different conversations with the different parties leading up to the mediation.  Ultimately, the in-person mediation session was unsuccessful.  Dale, however, did not want to end the session on a bad note and attempted to continue settlement discussions via e-mail.

 

Dale engaged in lengthy e-mail conversations with Clark’s attorney about potential settlements, including how much Clark would accept in a settlement.  Dale insisted on getting to Clark’s “bottom line.”  Clark suspects that Dale engaged in similar discussions with Cooking’s attorney, and she would like to get those e-mails from Dale as discovery.

 

If Clark asked for all e-mails from Dale to Cooking, what should Dale do?  What should Dale do if Clark sends him a subpoena for all e-mail communications with Cooking?  What if Dale serves a document request to Cooking asking for the same materials?

 

UMA §4(a): “Except as otherwise provided in Section 6, a mediation communication is privileged as provided in subsection (b) and is not subject to discovery or admissible in evidence in a proceeding unless waived or precluded as provided by Section 5.” 

 

What if you were in a state (such as Minnesota) that did not adopt the UMA and does not have a similar rule regarding discovery?

 

Moderated by:

 

Kristen M. Blankley is an Assistant Professor at the University of Nebraska College of Law, where she teaches on a wide variety of alternative dispute resolution topics, including negotiation, mediation, and arbitration.  Ms. Blankley also an active scholar in the field of Alternative Dispute Resolution, publishing on arbitration, mediation, and ethics in alternative dispute resolution issues.  She has written on topics including class action arbitrations, judicial review of arbitration awards, mediation ethics, and mediation confidentiality. 

 

 

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This is a problem that can be fixed by having a good contract to mediate.  Just a few weeks ago in one of my classes we were tasked with negotiating a contract to mediate.   One area that we spent some time discussing was the very issue that you raised in your fact pattern.  My partner and I both agreed that the information which was disclosed in the mediation could not be used in other court proceedings.  The mediator was not to be called into court to testify for either party and the information that the mediator received would not be subject to discovery.  I think that this issue could be avoided if the parties have a good contract to mediate.

Thanks for the comment, Andy.  What do you think about just "discovering" the information and not necessarily using it in trial?  In other words, trying to get the e-mail messages but then agreeing to not use those e-mail messages as evidence in trial?  Is that a different situation?

Andrew said:

This is a problem that can be fixed by having a good contract to mediate.  Just a few weeks ago in one of my classes we were tasked with negotiating a contract to mediate.   One area that we spent some time discussing was the very issue that you raised in your fact pattern.  My partner and I both agreed that the information which was disclosed in the mediation could not be used in other court proceedings.  The mediator was not to be called into court to testify for either party and the information that the mediator received would not be subject to discovery.  I think that this issue could be avoided if the parties have a good contract to mediate.

If I was the mediator I would not disclose the email until I received a court order.  Before the court order is issued the opposing attorney would be able to make their case to the court of why the emails should not be disclosed.  I don’t know if the emails could be classified as work product doctrine, but that is an argument that the attorneys are going to have to make.

Would Clark be able to argue that the emails between the parties and Dale are not "mediation communications" since all parties were not privy to the emails?

 

Regardless, I agree with Andrew and would advise Dale to not disclose anything without a court order.

Great question, Jillian.  For reference, here is the definition of "mediation communication" under the UMA:  " (2) “Mediation communication” means a statement, whether oral or in a record or verbal or nonverbal, that occurs during a mediation or is made for purposes of considering, conducting, participating in, initiating, continuing, or reconvening a mediation or retaining a mediator."  UMA sect. 2(2).  I think a strong argument exists that these e-mails constitute mediation communications. 

Jillian Marullo said:

Would Clark be able to argue that the emails between the parties and Dale are not "mediation communications" since all parties were not privy to the emails?

 

Regardless, I agree with Andrew and would advise Dale to not disclose anything without a court order.

Thank you for the information. I agree; the emails very likely fall under that definition.

Under the UMA or not, I think it would be unprofessional and inappropriate for Dale to share any of the information he gained through the e-mail communication with either party. To respond to the questions, I think Dale should first ask Cooking if he could share the e-mails with Clark (and ask Clark if he can share their
e-mails with Cooking, to be fair).  If both parties agree, then the problem is solved, but if Cooking does not agree to sharing the e-mails, then I think Dale is fully justified in telling Clark that the e-mail is confidential as part of the mediation communication.  If Dale is subpoenaed, then he loses most of his control over the matter and then it is for the lawyer's to decide how to proceed.  In my opinion, UMA §4(a) sets a reasonable standard for the professional behavior of a mediator.  Therefore, even in a state that has not adopted the UMA, I think upholding the confidentiality of all communication in the discovery process is best.

 

The purpose of mediation is to provide the parties with an opportunity to work out an agreement without the courts.  In order to successfully mediate and to encourage parties to mediate, the guarantee of confidentiality is important as it builds trust in the mediator and the mediation process.  When the line becomes fuzzy on what is or isn't confidential, parties are less likely to fully disclose all pertinent information to the mediator.

 

Since the entire mediation process is confidential, including stages such as the pre-mediation conferences and caucuses, I do not see how either party would believe that the e-mails are an exception.  With a pre-mediation interview, the mediator can gather information from each party on issues or concerns, but this is not information that can be disclosed to the other party.  In a caucus, the information shared with the mediator is confidential and the mediator meets with both sides privately.  During a caucus, a party can share details such as their "bottom line" or other points that the party would not share with the other side. 

 

Here, the only difference from a pre-mediation conference or a caucus is that instead of being in person, the information was exchanged through e-mail.  Dale presumably still gave equal time to each party and did not share any confidential information.  Because of this, I agree with Jillian that the e-mail is likely "mediation communication". Dale continued to e-mail the parties after the mediation session in order to attempt to come to a settlement.  Even though the official session was considered completed -- and failed -- the purpose of the e-mail would fall into UMA 2(2) as communication for the purpose of continuing or reconvening the mediation. 


As a final point, I think that even if the e-mails would fall into some loophole where is isn't outright forbidden to be shared, both parties are going to feel a sense of betrayal by the mediator.  As they say, you only get one chance to make a first impression.  If either party feels betrayed or treated unfairly during their first experience in mediation, it would be very unlikely that the party would be willing to mediate in the future.


I'm curious as to how the court would handle such a situation.  The court ordered mediation, and the mediator took it upon himself to begin the mediation via email; is a mediator allowed to proceed with the mediation by using whichever technique he chooses?  

After the failed online and face to face mediation practices, the mediator continued to email the parties.  At what point would the court consider the mediation process to be over?  If the emails that were sent after the face-to-face mediation are not considered to be part of the mediation process, is this information still confidential?  

I would like to initially comment on Kaley Ballard's thread. First I would like to completely agree with her sentiments on confidentiality and the purpose of mediation. The incentive to engage in mediation, as opposed to the more costly litigation, is somewhat lost when you take away the ability of the parties to mediate freely without fear of their sentiments later being used against them. On some level, would this not eviscerate most mediation and negotiation sessions, getting rid of the likelihood of settlements and forcing parties into litigation. This would have a negative impact not only on those that would be able to assert their rights (due to a lack of funds, lack of time, etc.) but also increase the load on the court system because of the lack of settlement.

 

I also agree with Kaley on the point that it is ludicrous for a party to think that such communications would not be confidential. Are not conversations in caucus confidential to the extent that the parties do not want certain things disclosed? Especially in light of the UMA, I think any mediator or court would be hard-pressed to force these e-mail communications to come out.

 

Question: Can a mediator be subpoenaed? My inclination is no, but I wanted to be sure.

Even absent statutory guidelines of confidentiality, this problem can be resolved in many ways.  First, I agree with Andrew, a contract can solves this problem quick.  All parties could agree to a mediation contract that would hold all discussions confidential. Second, the mediator can personal adopt the ethical guidelines that attorneys follow on a daily basis and keep the information confidential unless otherwise said by either party.  Third, I believe the mediator should treat the online/email discussions with the same respect he would treat private caucus.  Which should include all private discussions confidentially unless expressly said otherwise. I think that is the most logical path to take.  When the mediator chose to email each party individually, he chose to set up an online private caucus with each party.  Therefore, the mediator should keep the discussions between him and the individual parties unless authorized to disclose the information to the other party.

Tosha Rae Long said:

Question: Can a mediator be subpoenaed? My inclination is no, but I wanted to be sure.

 

I'm obviously not an expert, but at my externship, we shred all papers and notes used in determining the agreement to prevent this.  Only the agreement itself is kept for records.

 

Of course now I'm spending time trying to figure this out instead of just waiting for Professor Blankley to respond. 

 

Anyway, in Nebraska, I looked up the Nebraska Dispute Resolution Act (http://supremecourt.ne.gov/mediation/mediator-ethics.shtml).  In Section 25-914 (on page 5), it says: "A mediator shall not be subject to process requiring the disclosure of any matter discussed during mediation proceedings unless all the parties consent to a waiver. Confidential communications and materials are subject to disclosure when all parties agree in writing to waive confidentiality regarding specific verbal, written, or electronic communications relating to the mediation session or the agreement. This section shall not apply if a party brings an action against the mediator or center, if the communication was made in furtherance of a crime or fraud, or if this section conflicts with other legal requirements."

 

I think this answers our question.  In general, it looks like there's not a lot that a mediator can be subpoenaed to share.


Kaley Ballard said:


Tosha Rae Long said:

Question: Can a mediator be subpoenaed? My inclination is no, but I wanted to be sure.

 

I'm obviously not an expert, but at my externship, we shred all papers and notes used in determining the agreement to prevent this.  Only the agreement itself is kept for records.

 

 

 

 

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