Critics of alternative dispute resolution have claimed that it undermines the rule of law and subverts justice. A court decision this week from California may lend support to these criticisms.
In a case titled “Wimsatt v. Superior Court” (PDF), the California Court of Appeals ruled on Monday that California laws barred a plaintiff from obtaining mediation briefs and related e-mails from an underlying lawsuit so that he could pursue a malpractice action against his former lawyer for conduct during the course of the mediation. The plaintiff alleged that his former lawyer had breached his fiduciary duty by reducing his settlement demand without his knowledge or consent.
California law shields from discovery communications made during the course of a mediation and provides no exceptions on public policy grounds. Although the law permitted no other outcome, the appeals court judge was clearly troubled by the result:
Our Supreme Court has clearly and unequivocably stated that we may not craft exceptions to mediation confidentiality. The Court has also stated that if an exception is to be made for legal misconduct, it is for the Legislature to do, and not the courts…
The stringent result we reach here means that when clients … participate in mediation they are, in effect, relinquishing all claims for new and independent torts arising from mediation, including legal malpractice causes of action against their own counsel. Certainly clients, who have a fiduciary relationship with their lawyers, do not understand that this result is a by-product of an agreement to mediate. We believe that the purpose of mediation is not enhanced by such a result because wrongs will go unpunished and the administration of justice is not served.
The judge called upon the Legislature to act in the best interests of justice and the public:
Given the number of cases in which the fair and equitable administration of justice has been thwarted, perhaps it is time for the Legislature to reconsider California’s broad and expansive mediation confidentiality statutes and to craft ones that would permit countervailing public policies be considered.
Like California, Massachusetts law protects the confidentiality of mediation communications. It allows no exceptions. Last September, the mediation community in Massachusetts formed a committee known as the MassUMA Working Group to explore the adoption of the Uniform Mediation Act. The UMA specifies a number of exceptions from the privilege, including evidence of professional misconduct or malpractice by a mediation party, nonparty participant, or representative of a party based on conduct occurring during a mediation. Enactment of the UMA in Massachusetts would prevent the kind of unjust and unintended consequence that California has just confronted.
Mediators, still not ready to support public policy exceptions to confidentiality in mediation? Then consider the damage a case like this can do to public confidence in the mediation process. One blogger, law professor Shaun Martin, sums it up in a few harsh words:
Feel like committing malpractice? Selling out your client?
That’s the lesson of the day. Justice Aldrich doesn’t appear especially happy about the result, but he says that he’s bound by precedent and that any changes are for the Legislature to make, not the judiciary. Even if the injustice is manifest.
Remember that the next time you agree to participate in a mediation.
(With thanks to colleague David Hoffman for alerting me to this decision.)
Bush and Folger’s The Promise of Mediation was published in 1994, and to mark the 10-year anniversary of this influential book, the Institute for the Study of Conflict Transformation (ISCT)...By James R. Antes