February 08, 2016 Practice Points

Oregon Court Blocks Use of Certain Mediation Statements in Malpractice Case

By Mitchell Marinello

As mediation has become more common, perhaps it is inevitable that there are more malpractice complaints arising from attorneys’ handling of mediations. One frequently asked question is whether the mediation privilege, which generally makes mediation statements and conduct confidential and inadmissible in litigation between the parties, also prevents a client from using his attorney’s mediation statements or conduct to establish a legal malpractice claim.

On December 10, 2015, in a case of first impression (in Oregon), the Oregon Supreme Court addressed this question in the context of Oregon’s mediation statutes in Alfieri v. Solomon SC S062520. The court held that the Oregon statutes protect “only communications exchanged between the parties, mediators, representatives of a mediation program and other persons while present at mediation proceedings.” (Emphasis added.) The court held that the private communications between a client and his attorney outside the presence of the other mediation participants—such as statements made during a private conference between the lawyer and client —were not protected mediation communications, even if they directly related to the mediation. As a result, the client and the attorney both were entitled to use the statements made outside the actual mediation proceedings as evidence to assert or defend against a legal malpractice claim. Statements made during the mediation, however, when the mediator and/or the other party were present, were confidential and could not be used in the client’s legal malpractice case.

Like many other states, Illinois has adopted the Uniform Mediation Act, which also protects the confidentiality of statements made during mediation. Unlike the Oregon mediation statutes, however, section 6 of the Illinois Mediation Act, 710 ILCS 35/6, provides an express exception to the confidentiality of mediation statements for the purpose of asserting or defending against a malpractice claim. Thus, section 6 provides in relevant part that:

(a) There is no privilege under Section 4 [against disclosure, admissibility or discovery] for a mediation communication that is:

.   .   .

sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediation party, nonparty participant, or representative of a party based on conduct occurring during a mediation;

Although we have not found any Illinois cases discussing this provision, the wording of the statute seems plain enough. In Illinois generally, though with some exceptions, statements made during mediation are confidential and cannot be used in court proceedings between the parties. Nonetheless, statements made during mediation appear to be available for use to assert or defend against malpractice and misconduct claims that are based on actions or conduct that takes place during the mediation.

Practice Points: Attorneys asserting or defending malpractice or other misconduct claims arising in a mediation setting need to be conversant with the particular mediation statute in the relevant jurisdiction. It is worth noting, however, that under the Uniform Mediation Act, statements made during or in connection with the mediation may be discoverable and admissible as evidence.

Keywords: mediation, mediation privilege, malpractice or misconduct

Mitchell L. Marinello is with Novack and Macey LLP in Chicago, Illinois.

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