The federal courts are now debating whether a federal evidentiary privilege applies to documents used in arbitration proceedings. This article will discuss this recent development, the scope of existing federal discovery privileges, and whether the courts should create a new one.
Federal Mediation Privilege
A federal mediation privilege didn't exist prior to the 1998 decision in Folb v. Motion Picture Industry Pension & Health Plans 16 F.Supp.2d 1164 (C.D. Cal. 1998). In Folb, the court addressed whether documents used in conjunction with mediation conducted outside the court system should be afforded the same confidentiality protection as that afforded to documents used in conjunction with court-connected mediation. The court relied on Federal Rules of Evidence 501, the sole federal rule on evidentiary privileges. Applying the test for establishing new privileges enunciated by the Supreme Court in Jaffee v. Redmond (518 U.S. 1 (1996)), the court balanced the need for confidentiality in mediation against the modest loss of likely evidentiary benefit provided by documents created solely for introduction during mediation. The court held that the new privilege applied only to information disclosed in conjunction with formal mediation proceedings conducted by a neutral. Protection extends to communications to the mediator and between the parties during mediation, as well as communications in preparation for and during the course of mediation with a neutral. Subsequent negotiations between the parties, however, are not protected even if they include information initially disclosed in mediation. To protect additional communications, the parties are required to return to mediation.