March 16, 2016 Top Story

Mediation Communications Inadmissible in Attorney Malpractice Suit

Privileged mediation discussions cannot be used to defend malpractice claim absent waiver

Pamela Sakowicz Menaker

Mediation communications are privileged and may not be introduced to prosecute or defend against a professional malpractice claim, according to Grubaugh v. Blomo. In Gubaugh, an appellate court held that an attorney could not rely upon privileged mediation communications in support of her defense, and dismissed the former client's malpractice claims based upon those communications. The case highlights an existing jurisdictional split between states that allow an exception to mediation confidentiality laws with respect to malpractice claims and those that do not.

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