There, defendant was only available for the mediation by telephone, and plaintiff's lead counsel sent two associates in his stead. Plaintiff's counsel said the mediator gave advance permission to send the associates and for plaintiff to appear by telephone. Defendant's motion for sanctions disputed both claims, said they were false, and said the mediator would testify to their falsity if permitted.
The court allowed a "limited inquiry" into the communications between plaintiff's counsel and the mediator in order to clarify whether the mediator did, in fact, give the advance permission to depart from the rules. That exception to the general scope of confidentiality was critical to determine non-compliance with the court's orders and the rules, as well as assessing if plaintiff's counsel had committed perjury (his statements to the court were both on the record and in a sworn declaration).
The court deviated from the dome of confidentiality because of "the unique circumstances of this case." Nonetheless, the court "carefully limit[ed] the evidence" which the mediator was to provide, and also proceeded in stages.
First, the mediator was to submit a declaration detailing his communications with plaintiff's counsel, including specifying whether, when and how the mediator gave the alleged permission. Notably, the opinion did not say what the next steps would be, but it likely included the mediator's in-person testimony if plaintiff challenged the mediator's veracity. The court would decide what the next steps were after reviewing the mediator's declaration.
That limited disclosure was designed to avoid any discussion about the substantive exchanges at the mediation itself. Indeed, those disclosures looked solely at pre-caucus procedural matters, not the parties' settlement negotiations. That limited incursion, the court opined, was essential to avoid unfairness to defendant and to preserve the integrity of the proceedings before the court and under the rules. Those interests, coupled with the "careful restrictions" the court set, outweighed the general rule of confidentiality.
Finally, the court set boundaries of public disclosure of the contested proceedings, again striking a balance between the presumptions favoring public access to judicial documents versus the confidentiality bubble. The court concluded that the public has a strong interest in knowing about plaintiff's counsel's truthfulness (he had previously been sanctioned by other courts), and that the considerations against public disclosure were weak.
Thus, redacted versions of the parties' submissions were filed on the public docket, and un-redacted versions were kept under seal. The redactions included any discussions of the parties' conduct at the mediation itself (especially their substantive negotiations) as well as the identity of the mediator and court employees working on the court's mediation program. Other future filings were to be made public, provided they did not contain any of the redacted content.
The case illustrates when and how the policy of mediation confidentiality falls to a higher purpose. But it also underscores how courts must take the smallest bites possible out of the confidentiality shield when a carve-out is warranted. Doing so carefully can preserve confidentiality while still allowing justice to be meted out.