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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Excellent point, Troy.  FRE 408 would seem to be applicable to the extent that we are talking about admitting evidence in court.  FRE 408 (as we will discuss in class) actually has very little weight given the wide range of "other" ways the evidence could come in.  However, FRE 408 is not directly tied to the discovery issue, while the UMA does speak directly to discovery issues.

Since mediation was unsuccessful what did the Court rule in that sex discrimination case?

I know that Prof. Blankley used a real world example of a mediation that went on for a year via email. However, I am still struggling with our fact pattern and, like Charity, do not see the emails that took place after the failed mediation in the same light as I would emails during the process.  I agree with the overall consensus that all email should remain out of litigation if possible, but why would the mediator continue outside of the formal process. I think a benefit of mediation is the agreed upon process and struggle with our fact pattern. 

Charity Bolling said:

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 also have to wonder why the mediator took it upon himself to attempt to continue the mediation.  I think that emails to both sides gauging interest in continuing the mediation would have been fine, but it seems that instead of allowing the parties to control the mediation, Dale seemed to have a personal stake in the success of the mediation.  Once the mediation session was over, I would think that it would take consent by both parties to restart the mediation regardless of whether it is by email or in person.  If the parties haven't consented in some fashion, it is arguable that the communications were not mediation communication.  It falls on the mediator to disclose whether both parties are involved.  If they haven't and communications had in fact been had with the mediator by both sides, I don't feel that these would be "mediation communications".  I may be way off base, but I think Dale's situation could have been avoided had he ensured that the parties understood that he was still working to facilitate an agreement.


As far as the power point presentation, I agree with Garrett.  Since there had been discovery, I don't think that opposing counsel should be able to get it's hands on it for the sole purpose of determining trial strategy which would be privileged. 

I have the same question as Charity. When does the mediation process end? I thought it would be at the time that the parties come to an impasse or the dispute goes back to the courts to decide. After that, would the mediator's duties be diminished, therefore, diminishing the confidentiality of all subsequent communications?

In addition, I can see how the private emails are like private caucuses, but how helpful is it to keep all of the information to yourself as a mediator? Especially, if it is information that can move the parties closer to an agreement. How far can you go in persuading the other party to reveal some sort of confidential information?

It also seems like Dale was having different conversations with both parties through email. It is possible that when he got to the in-person mediation it may have been hard to decipher all of the relevant facts and issues. Would you recommend a pre-mediation boilerplate questionnaire asking each party the same questions, in order to keep on task and not get an overload of information? (Basically, how much pre-mediation communication is too much, or is there such a thing)?

Just to throw this out there... going back to the original fact pattern, since we know at least one attorney participated with the mediator in email exchanges, would it be considered voluntary participation after the fact? I don't necessarily approve of the mediator taking the additional fact-finding upon himself, but I question the accountability of the attorney who voluntarily responded as well. In a case like this, would it be permissible to tell the mediator that negotiations have failed and the discussion has ended, thus cutting off what was originally court-ordered mediation? I guess I feel that, especially in the context of a court ordered mediation, there should be some sort of finality to the process so confidential information isn't being thrown around inadvertently.

Thanks for all of the comments and questions about the key issue of when mediation ends.  The "end" of mediation is a complicated and amorphous concept.  I would argue that many mediations do not end at the end of the in-person meetings.  In the fact pattern I created, all parties voluntarily decided to keep working at the mediation via e-mail, even though the in-person hearing was not successful.


I do not believe that all "unsuccessful" mediation sessions end in impasse.  In fact, many mediations continue "in mediation" in some other form - be it phone conferences, e-mail, or other technology.  In fact, there is a big difference between "impasse" and continuing the settlement discussions outside of the in-person session.  


Serious questions exist here regarding the "end" of the mediation.  It is unclear whether mediation has ended or not.  If mediation has ended, then the calculus certainly changes with respect to the discoverability of the e-mail messages between one party and the mediator if those messages are relevant or could lead to the discoverability of relevant evidence. 

Kaley raises a great point  that even if it is not explicitly forbidden, a mediator should not necessarily disclose these communications as they might betray the trust of one party. Not only would that discredit the mediator, but it would also disenfranchise one or both parties with the entire process and remove any possibility of a peaceable resolution.


However, this raises a larger question. When a mediator is given private information during a caucus, who determines when and how that information ought to be disclosed? Should the party make the decision or should the mediator use personal discretion to disclose. Furthermore, if mediation breaks down and litigation ensues, how much of these caucuses can or should be part of discovery?

Do most states really give any support in this aspect if you are not in "legal" proceedings?   Doesn't this subject sort of ride the edge of legal or ODR?  This raises a lot of the issues that puzzle me about ODR.  I look forward to reading all comments.
This is a very appealing scenario.  I'm no lawyer but, I would venture to think that those communications would be confidential and not subject to be turned over despite them being conducted in an online format.  However, I'm baffled as to why the mediator continued discussing settlements via email after it had failed the first time.  Clearly this online format was not suitable for this particular case which leads me to a point.  Not all online dispute resolution formats are good for every situation.  If Dale was unable to successfully mediate the situation via email, perhaps he should have attempted another online format such as chat or skype. I just believe that in certain circumstances face to face communications will always reign supreme.  If this mediation was done in the traditional face to face fashion, this problem would have never arose.

Actually, the scenario envisions an in-person mediation that was only partially successful.  The mediator here engaged in online communications before and after the mediation, and the question here is the discoverability of the pre- and post-meeting communications to a portion of the participants.  So, this is not really a situation in which ODR did not work out.  Instead, it is a situation involving in-person hearings with other elements of ODR to help the process (namely, e-mail communications before and after the hearing).  Such involvement by mediators is quite common. 


Jared makes an interesting point about the expectation of privacy within the caucus.  Often, the mediator will set forth the rules regarding confidentiality of caucusing.  The most common method is for mediators to treat as confidential anything said in a caucus unless the party gives permission to disclose.  Other mediators consider all statements in caucus to not be confidential unless so specified by the parties. 


However, no matter how the mediator treated the communication, the idea of discoverability is generally one for the courts to decide and not the mediator.

If I were the mediator, I would not disclose. I agree having a good mediation agreement can curtail some of the confusion, but also driving home the fact that mediation is confidential and is not admissible in court anyway would I think prevent a subpoena. This raises a very good question for me though about ODR and confidentiality. In traditional mediation settings, notes taken by the mediator are handwritten and destroyed after the mediation so this isn't an issue. However, in ODR where everything is online, how can one protect the integrity of mediation while still enjoying the advantages of the technology?


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