Grubaugh addresses the limits of mediation confidentiality and highlights the split between jurisdictions that allow exceptions to the privilege for legal malpractice cases and those that don’t.
In Grubaugh, the plaintiff claimed that her former attorneys provided “substandard legal advice … during a family court mediation,” and claimed damages as a result of that poor advice. Her prior attorneys (the defendants) argued that the entire mediation process is privileged under Arizona law, hence communications allegedly made during and after such process related to the mediation cannot be used to support a legal malpractice claim. As a result, they argued, Grubaugh’s complaint should be dismissed.
Before addressing the Arizona Appellate Court’s opinion, it is important to be clear as to what was at issue. There was no claim that a confidentiality agreement (often an express agreement signed by all participants to a mediation) was breached or should be set aside. Rather, at issue was the applicability and scope of Arizona’s mediation privilege statute, which provides that
[t]he mediation process is confidential. Communications made, materials created for or used and acts occurring during a mediation are confidential and may not be discovered or admitted into evidence unless one of [four] exceptions [are] met.
The plaintiff did not assert that one of the applicable exceptions applied. Instead, she argued that by filing the legal malpractice action against her former counsel she waived the privilege, hence advice allegedly provided during and after the mediation could be used to support her law suit. The trial court agreed and permitted the action to proceed. The defendant lawyers appealed, and the Arizona appellate court reversed.
Explaining its decision, the Court differentiated mediation privilege in Arizona from attorney-client privilege.
The mediation process privilege, however, differs from the attorney-client privilege, which may be impliedly waived. [citation omitted]. The attorney-client privilege originated at common law and was subsequently codified by the Arizona legislature. At common law, the privilege was impliedly waived when a litigant's “course of conduct [was] inconsistent with the observance of the privilege.” [citation omitted]
In contrast to the attorney-client privilege, Arizona's mediation process privilege has no common law origin. It was created entirely by the legislature. Therefore, this court must rely upon the language of the statute to determine its meaning. Unlike waiver of the attorney-client privilege under the statute and common law, the statutory waiver provisions of the mediation process privilege are specific and exclusive [citation omitted].
Finding no applicable waiver under the statute, the Arizona Appellate Court held that the mediation privilege applied and therefore the alleged “substandard” advice could not be used to support plaintiff’s complaint. Accordingly, the case was dismissed.
This case is instructive for two reasons: First, it sets out the important lesson that mediation privilege is a creature of statute and not common law; second, there is a split among the states regarding the scope of mediation confidentiality and when/how mediation disclosures may be revealed. Bottom line: know the statutes governing the mediations you conduct.
Keywords: alternative dispute resolution, adr, litigation, mediation, privilege, waiver, attorney-client privilege, malpractice