Local Confidentiality Rules DO Create a Mediation Privilege: ADR Act of 1998

By: Donald L. Swanson “It’s doubtful that a district court can augment the list of privileges by local rule” because “privileges are created by federal common law.” —The Facebook, Inc. v. Pacific Northwest Software, Inc., 640 F.3d 1034 (9th Cir. 2011). The Facebook case deals with evidence on “what was said and not said” during mediation. In Facebook,... Continue Reading →

ADR Act of 1998: Two Decades of Noncompliance, and an Artful Dodge in the Ninth Circuit

By:  Donald L. Swanson The Alternative Dispute Resolution Act of 1998 ("ADR Act") is celebrating its twenty-year anniversary this year.  It's impact has been highly effective -- but with some less-than-positive results.  This article is about the latter. The ADR Act provides in 28 U.S.C.  § 652(d): "Until such time as rules are adopted under... Continue Reading →

Mediation Confidentiality Protection: A “Very High Bar to Overcome”

By: Donald L. Swanson The legal opinion is In re Residential Capital, LLC, 536 B.R. 132 (Bankr. S.D.N.Y.  2015). The Facts, Including Mediation ResCap bought residential mortgage loans and sold those mortgage loans to others. When a mortgage loan crisis hits, a decade or so ago, many of these mortgage loans go bad.  Those who bought... Continue Reading →

A Federal Bankruptcy Rule is Needed for Mediation Authorization and Confidentiality: Four Reasons Why

  By Donald L. Swanson Mediation needs to be included — explicitly and by name — in the Federal Rules of Bankruptcy Procedure.  A new Rule is needed to cover two specific subjects: (i) mediation authorization, and (ii) mediation confidentiality. All other areas of mediation practice and procedure can be addressed in local rules, provided that the... Continue Reading →

Combining the “Hip Pocket” Service Rule and Early Mediation

By: Donald L. Swanson The California Law Revision Commission is studying mediation confidentiality in the legal malpractice context.  Its Memorandum dated May 27, 2016, discusses ways to address confidentiality concerns. Minnesota's "Hip Pocket" Example An unusual “type of approach” it identifies is Minnesota’s “hip pocket” service rule.  Under this rule, the statute of limitations is... Continue Reading →

Sanctions for Violating Mediation Confidentiality? No.

By: Donald L Swanson The Bankruptcy  Court opinion is In re Brizinova and Soshkin, 565 B.R. 488 (Bkrtcy. E.D.N.Y. 2017). The Trustee sues the debtors to recover assets for the bankruptcy estate. The Debtors file a motion to dismiss, in which their attorney, (i) makes statements the Trustee finds objectionable, and (ii) references information from a... Continue Reading →

Mediation Confidentiality: Mediator’s Information and Testimony

  By Donald L. Swanson The basic rule is this: the confidentiality of information held by a mediator is nearly-sacred. The case is In re Anonymous, 283 F.3d 627 (4th Cir. 2002). The question is whether a mediator may divulge, or be compelled to divulge, information from a mediation session. An underlying lawsuit is settled... Continue Reading →

“The Walls of the Mediation Room are Remarkably Transparent”: From a Study on Mediation Confidentiality

By Donald L. Swanson “In sum, the walls of the mediation room are remarkably transparent." -- James Coben & Peter Thompson The State of California is studying mediation confidentiality in the context of legal malpractice disputes. Suprise # 1 A surprise of the study is from a 2006 law review article by Coben and Thompson... Continue Reading →

How Frequently Does Malpractice Occur in Mediation?

By Donald L. Swanson California has been studying this question: should a malpractice exception be added to California's mediation confidentiality laws? If, for example, a mediating party sues his/her/its attorney for malpractice committed during a mediation session, should statements made during the mediation session be admissible evidence in the malpractice lawsuit? Or should such statements... Continue Reading →

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