Mediation Confidentiality: Defenses Raised and Rejected

By Donald L. Swanson

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A major stretch!

The Judges are irritated, to begin with.

If anything is clear in In re Anonymous, 283 F.3d 627 (4th Cir. 2002), it’s this: the Judges on the U.S. Court of Appeals are more-than-slightly unhappy with the two attorneys in the case.

A Confidentiality Issue

The Court hauls two competing attorneys before the Standing Panel on Attorney Disciple for the U.S. Fourth Circuit Court of Appeals.  The question is whether the attorneys violated mediation confidentiality rules contained in the Court’s Local Rule 33 and, if so, whether they should be sanctioned.

Defenses are a Stretch

It’s obvious the Court believes all defenses asserted by the attorneys are a major stretch!

The underlying case involves an expense reimbursement dispute between a plaintiff and the plaintiff’s former attorney that had been referred to an arbitration panel.

The competing attorneys are plaintiff’s new attorney and plaintiff’s former attorney.  The issue is whether these attorneys violated mediation confidentiality requirements by:

submitting information from a prior mediation session to the arbitration panel, and

seeking consents from the defendant and the mediator for using mediation information in the arbitration.

–First Defense

The attorneys first argue that confidentiality provisions in Rule 33 don’t apply to this dispute between a party and the party’s former attorney in an expense reimbursement dispute between them.

Such defense is rejected because Rule 33 provides “clear guidance in the form of a bright line rule” and is “unambiguous.”

–Second Defense

The attorneys also argue that a strict enforcement of confidentiality requirements would impair their due process rights in the arbitration.

This defense is rejected because courts “routinely” find that mediation confidentiality interests justify “restrictions on the use” of information obtained during a mediation.

–Additional Defenses

Also rejected are the following defenses:

A discussion that occurs while the party and attorney are leaving the mediation session are not subject to Rule 33 confidentiality requirements.

– This defense is rejected because such post-session discussions are directly associated with and are a part of the mediation session.

Plaintiff’s new attorney attended the mediation session with plaintiff but not as her attorney in that case and, therefore, isn’t subject to the confidentiality requirements of Rule 33.

– This defense is rejected because everyone attending a mediation session is subject to Rule 33 confidentiality requirements.

A Bright Line is Crossed

The “per curiam” opinion (i.e., issued in the name of the Court rather than a specific judge) in this case is having none of the attorneys’ excuses.  The Court sees this entire issue as clear and straightforward and unambiguous.  There is a bright line, the Court finds, and the attorneys crossed it.

Questions

What do you all think about this In re Anonymous opinion?

On a side note:  doesn’t it seem odd that the name of the case is In re Anonymous?  It’s not like the parties are minors or that the subject matter requires privacy.  Or, if the Court wants to keep parties’ names out of the public record, why not title the case with the names of the attorneys?

** If you find this article of value, please feel free to share. If you’d like to discuss, let me know.

 

 

 

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