“Blackmail” Exception to Mediation Privilege: A New Appellate Opinion

imageBy: Donald L. Swanson

Mediators and mediating parties beware!

The Facts

The mediation of a contentious commercial case concludes without an agreement.  But the mediator keeps trying.

The mediator sends a post-mediation email to counsel for “Jonathan” conveying a proposal, which includes these statements from the other party:

–“Jonathan knows the extent of his wrongdoings and our client believes that Jonathan is in very serious trouble.”

–“It is clearly in everyone’s (and particularly Jonathan’s) interest to wrap this up speedily and quietly. . . . – the concern being that others will become aware of it.”

–“settlement will obviate the need of further steps such as committal proceedings.”

–“If Jonathan has misled HSF and sworn false evidence . . . Jonathan will face charges of perjury, perverting the course of justice and contempt of court and is likely to be imprisoned.”

–“In the above circumstances, Jonathan’s credibility and reputation will be destroyed.”

The case is pending in England.

The Opinion

On July 12, 2016, Lord Justice Patten, Lord Justice Floyd and Mr. Justice Baker of the “Court of Appeal (Civil Division) on Appeal from the High Court of Justice Chancery Division,” issue their opinion on the matter.  

The question in the opinion is whether Jonathan can amend his petition to add claims against the other party, based on the threats of criminal prosecution quoted above.

Since the threats are in a mediator’s email, the Justices explain the mediation privilege issue like this:

–“The email was sent in the context of a mediation, and thus would normally be the subject of mediation/without prejudice privilege.”

–The question is whether the contents of the email “fell within the ‘unambiguous impropriety’ exception to that privilege.”

The Justices explain that the “unambiguous impropriety” exception would apply:

–“if the exclusion of the evidence would act as a cloak for perjury, blackmail or other ‘unambiguous impropriety.’”

In applying the “unambiguous impropriety” exception, the Justices reference these findings by the trial judge:

–“I am in no doubt that this was an attempt at blackmail which falls firmly within the exception and that the email is admissible.”

–“The impropriety consists, in my judgment, in threatening to pursue contempt proceedings, including a committal to prison, unless Jonathan pays the brothers a much higher price.”

The Justices rule that Johnathan may amend his petition to include blackmail claims, despite the mediation context and privilege.

What do you all think about this?




One thought on ““Blackmail” Exception to Mediation Privilege: A New Appellate Opinion

Add yours

  1. This outcome is consistent with the exceptions subsection (2)(b) of FRE 408: “The court may admit this [Compromise Offers and Negotiations] for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.” Blackmail certainly amounts to prejudice, let alone bad faith in the mediation.

    Liked by 1 person

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