It is uncertain whether, the Dodgers hopes of a winning season may have come to an end with the injury of pitcher Brad Penny. Why, because the Marlins may have failed to disclose Penny’s weakness during the mid-season trade? Did the Marlins hide the facts during negotiations? As the team physician Jobe said, he was not asked to give Penny a physical examination before the Dodgers finalized the trade. Jobe said he did consult with the Marlins medical staff and was assured Penny had no health problems at the time of the trade. Failure to do adequate discovery before finalizing a deal? The Dodgers are facing the possibility of trying to get to October without Penny.
As we can see with the Marlins and Dodgers mid-season trade of Penny, parties hide their weaknesses during negotiations. Legal commentators are claiming that the new California Supreme Court opinion of Rojas v. Superior Court (July 13, 2004), where the court held that everything disclosed in mediation has a veil of ‘absolute confidentiality’, will cause litigants to disclose their weaknesses then hide behind this veil of ‘absolute confidentiality’ during the post-mediation discovery process and at trial. The legal commentators are claiming that the Rojas decision will kill mediation.
These commentators’ theories are out of the ball park. As a litigator for more than 20 years and now a full-time practicing mediator, nobody confesses their weaknesses in mediation. Why should they? If the other side already knows and has conducted some discovery, there is no need to confess anything. If the other side does not know, it would be stupid to disclose any weakness. Why disclose something that will weaken your bargaining position? The Marlins did this well to the Dodgers.
However, the parties cannot hide weaknesses at mediation. Experienced mediators have an intuitive sense in sniffing out the weaknesses in cases, despite the fact that the weakness is never verbally communicated or revealed in writing to the mediator. Mediators in sensing a weakness have a way of conveying to the weaker party that it would be in their best interest to resolve the matter. It is always the information that is not revealed, that discloses the weakness. Recently, I had a sexual harassment case, where a lesbian employee allegedly sexually harassed a male employee. I inquired from the defendant employer as to whether the perpetrator had a history of harassing other employees. The response was evasive: that the perpetrator was a lesbian and would not harass male employees, that she performed her job well and makes a very credible witness. I sensed a weakness in the employer’s case. When it did not settle, I indicated that the time was not ripe and more discovery should be conducted. One week later, I received a call from the employer’s attorney who posed a hypothetical question, ‘How much would the case be worth if there was evidence that the lesbian employeer harassed same sex employees, but not those of the opposite sex?’ I told her the employee’s stats did not look good. Well, the case settled shortly thereafter. Litigants know the rules of bargaining, as well as the Marlins: never reveal your weaknesses.
THE ROJAS DECISION BECOMES A SACRIFICE FLY BALL SO THAT THE DEFENSE CAN SCORE A RUN.
Where can the Rojas decision be used as a tool in the game of litigation, in order to score a run? Watch out for those underlying cases, not yet filed cases and non judicially related cases. As a mediator who mediates primarily employment actions, I receive multiple cases at different times that arise out of the same circumstances and have not been judicially consolidated or related. Many times, the related action is handled by at least one different set of attorneys. It is the non judicially related actions, where the use of the absolute confidentiality can be used to one of the party’s advantage.
In the last six months I have had multiple cases involving wage and hour, religious discrimination, and sexual harassment issues that arise out of the same facts and the same attorneys represented both the plaintiff or defendant. In one instance, a complaint for sexual harassment was filed but no discovery was conducted before the case settled. The plaintiff’s attorney ended up with an easy and quick settlement. During mediation, the employer disclosed documents and discussed its liability. attorney. This same plaintiff’s attorney now represents another employee who claims that she was a victim of sexual harassment arising out of the same set of circumstances. The plaintiff’s attorney waited to file this second claim, in order to see the outcome of claim number 1. In claim number 2, plaintiff’s attorney sat back, did no discovery and planned to use all the documents produced during mediation to support the second claim. The second claim was the weaker claim and plaintiff’s attorney bootstrapped it onto the first claim.
Under Rojas, plaintiff’s attorney will have a rude awakening. If the defense lawyers are smart, they will claim that all documents disclosed and statements generated in the first mediation are absolutely privileged and cannot be used in the subsequent litigation. Plaintiff’s quick and easy settlement in Case 2 is lost and he will be facing the expense of a trial in Case 2. For those attorneys who take cases where there is more than one potential plaintiff and file separate lawsuits in order to litigate the stronger case first to force a settlement in the weaker case, will not score any runs. Defense attorneys can hit a sacrifice fly by allowing plaintiff in Case 1 to get a quick and inexpensive settlement in order to advance to Case number 2. In Case number 2, defense attorneys will hit the home run of ‘absolute confidentiality’ as to those documents used in the mediation of Case 1. The defense scores. Plaintiff strikes out with only a quick and meager settlement for Case 1 and a Trial for Case 2. The Rojas game has begun. At least with Rojas, the defendants will not have to wait around and see what additional claims are hanging out in the dug out, waiting to score. Plaintiff’s attorneys should be wary of the sacrifice fly and force the defendants to hit into a double play, by filing all potential claims in one action and mediate them together.
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