Sounds like you’ve got quite a mess in California. In Massachusetts, we have a badly drafted mediation confidentiality statute with minimal case law that has done nothing to clear up the confusion. It contains definitional ambiguities; creates a blanket prohibition on in-court disclosure of mediation communications, with no exceptions and not a word about waiver; and may or may not also prohibit out-of-court disclosures. Not surprisingly, most mediators in Massachusetts seem confused as hell about what it means. We had the opportunity to replace this mess with the Uniform Mediation Act or a sensible, well drafted alternative but mediators balked, preferring to cling to the status quo; still not sure what happened.

Thanks again, Vickie.

As if often the case, I was not clear enough in my note about Thottam.

Unfortunately, the court in that case was interpreting the “front end” agreement, which it read together with the “back end” agreement as a single contract. Because the “front end” confidentiality agreement was incredibly broad, the Court construed the carve out for enforcing the “back end” agreement as being similarly broad.

If anyone’s sufficiently interested in the topic to understand the opinion and how it relates to confidentiality in California, there’s what amounts to a “brief” of the case at the link I included in my first comment.

The point for you, me and all mediators and mediation advocates is that there are dangers lurking at both ends. It is unlikely that the parties to the Thottam mediation would have expected at the “front end” that the confidentiality agreement would be read as part of the settlement agreement. But a court eager to get a case off its docket will take any excuse it’s provided. Hence the need for extreme caution on both ends and the need for mediation advocates to stay current on the law of confidentiality in their own states, which changes two to three times a year here in California (a moving target despite the fact that our Supreme Court has addressed the issue three or four times in the past five years). And I’m not even going to BEGIN with federal court mediation protections (or the lack thereof)!

Oy!

Best,

Vickie

Just to be clear, in this post I wasn’t talking about the end product – the settlement agreement; I was referring to the agreement to mediate that begins the mediation and that spells out the rules of engagement with respect to privilege and confidentiality, spelling out how and to what extent mediation communications will be shielded from disclosure later. Too many people sign them without reading them with care. I’m urging caution on the front end – and I appreciate your caution on the back end. I think between us, we’ve got it all covered. Cheers, Vickie.

My proposed solution to the overbroad confidentiality agreement was not to sign any agreement that could possibly be interpreted as broad enough to waive the protection whenever one party sought to exclude from evidence a skeletal agreement or term sheet. Other protections include bringing a form agreement on a flash or jump drive to the mediation so that ALL the terms of the parties’ agreement can be memorialized and executed on the spot (no matter how tired everyone is). This solution also prevents “nibbling,” i.e., trying to eliminate or propose “standard” terms that the parties often know at the time of the mediation will cause difficulties down the line but as to which they hope they’ll “have their way” in the following weeks (or months!)

In all events, mediation advocates and mediators who assist in the drafting of term sheets, should treat all forms of such an agreement with the same degree of caution with which they’d treat a final and binding contract. We’ve yet to see (as far as I know) a malpractice action against the attorney or the mediator based upon the agreement’s inadvertent waiver of confidentiality.

As the assignment cop said at the beginning of every Hill Street Blues episode – “hey! let’s all be careful out there!”