Mediation Law Prevents Using Talks as Malpractice Defense

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By Samson Habte

Sept. 22 — A lawyer accused of giving substandard advice during mediation of a client's divorce case can't use her communications with the client and the mediator during and after mediation to fight off the client's malpractice action, the Arizona Court of Appeals, Division One, held Sept. 22 (Grubaugh v. Blomo, 2015 BL 305913, Ariz. Ct. App. Div. 1, No. 1 CA-SA 15-0012, 9/22/15).

The ruling is the latest in a line of cases affirming the breadth of state laws that protect the confidentiality of communications made, and materials created for or used, during mediation proceedings.

Judge John C. Gemmill said Arizona's “wide-reaching” mediation privilege statute “provides for a broad screen of protection that renders confidential all communications, including those between an attorney and her client, made as part of the mediation process.”

“[O]f the four exceptions listed in the statute, none excludes attorney-client communications from mediation confidentiality,” Gemmill said. He added that the statutory language “does not allow us to infer the existence of an implied waiver” when clients sue for malpractice.

Accordingly, the panel reversed a trial court's finding that attorney Andrea C. Lawrence could defend herself against former client Karen Grubaugh's malpractice claims by “utiliz[ing] as evidence communications between herself and Grubaugh, occurring during and after the mediation, which led to Grubaugh’s ultimate acceptance of the dissolution agreement.”

Goose and Gander Alike

On the other hand, the court said its finding that communications from the divorce mediation were not discoverable or admissible in this malpractice action also required the dismissal of “any claims in [Grubaugh's] complaint dependent on such communications.”

“The mediation process privilege … differs from the attorney-client privilege, which may be impliedly waived.”Judge John C. Gemmill

“To hold otherwise would allow a plaintiff to proceed with a claim, largely upon the strength of confidential communications, while denying the defendant the ability to fully discover and present evidence crucial to the defense of that claim,” Gemmill wrote.

The court said its conclusion that those claims must be stricken was supported by cases applying similarly broad mediation confidentiality laws in other states, including Cassel v. Superior Court, 244 P.3d 1080, 27 Law. Man. Prof. Conduct 47 (Cal. 2011), and Alfieri v. Solomon, 329 P.3d 26, 30 Law. Man. Prof. Conduct 408 (Or. Ct. App.), review granted, 340 P.3d 47 (Or. 2014).

No Waiver, Unlike A-C Privilege

The trial court had held that Grubaugh's conduct in filing a malpractice suit constituted an implied waiver of the statutory protections afforded by Arizona's mediation privilege law.

Gemmill said that holding was based on an assumption that the mediation privilege is analogous to the attorney-client privilege—which, like most common law evidentiary privileges, is subject to the doctrine of implied waiver when a privilege holder voluntarily discloses otherwise protected communications.

“The mediation process privilege, however, differs from the attorney-client privilege, which may be impliedly waived,” Gemmill stated. The mediation privilege “has no common law origin,” he explained, and the fact that it “was created entirely by the legislature” means that “this court must rely upon the language of the statute to determine its meaning.”

The exceptions in Arizona's mediation confidentiality law “are specific and exclusive,” he said, and the “plain, clear and unequivocal” language of the law precluded recognition of a judicially crafted exception that “infer[s] the existence of an implied waiver.”

“The legislature could have exempted attorney-client communications from the mediation process privilege, but it did not do so,” Gemmill said.

The opinion contrasts Arizona's mediation privilege statute with Florida's, which expressly exempts communications offered “to report, prove, or disprove professional malpractice occurring during the mediation.”

The California Law Revision Commission, which is conducting a study on “the relationship between mediation confidentiality and attorney malpractice and other misconduct,” issued a 2014 memorandum which said that 19 states and the District of Columbia have exceptions in their mediation confidentiality laws or rules that specifically address “alleged attorney misdeeds or alleged professional misdeeds more generally.”

Public Policy Supports Protection

The court said a “plain-language application” of Arizona's mediation privilege statute was also “supported by sound policy.”

“By protecting all materials created, acts occurring, and communications made as a part of the mediation process, [the statute] establishes a robust policy of confidentiality of the mediation process that is consistent with Arizona’s ‘strong public policy' of encouraging settlement rather than litigation,” Gemmill said.

“The statute encourages candor with the mediator throughout the mediation proceedings by alleviating parties’ fears that what they disclose in mediation may be used against them in the future,” he added. “The statute similarly encourages candor between attorney and client in the mediation process.”

Protect Other Privilege Holder

Finally, the court said confidentiality should be enforced because Grubaugh is not the only holder of the privilege in this case.

Gemmill said the privilege “is also held by Grubaugh’s former husband,” who has “co-equal rights under the statute to the confidentiality of the mediation process.” He is not a party to this malpractice action and does not appear to have waived his privilege, the court stated.

“Although the superior court did rule that the privilege was not waived as to communications between the mediator and the former husband, waiving the privilege as to one party to the mediation may have the practical effect of waiving the privilege as to all,” Gemmill said.

“In order to protect the rights of the absent party, the privilege must be enforced,” the court stated.

In a footnote, Gemmill said the mediator “may also be a holder of the privilege, but we need not reach that issue in this opinion.”

Judges Donn Kessler and Kenton Jones joined the opinion.

Broening, Oberg, Woods & Wilson P.C. represented Lawrence and her law firm. Sternberg & Singer Ltd. and the LawOffice of Paul M. Briggs PLLC represented Grubaugh.

To contact the reporter on this story: Samson Habte in Washington at

To contact the editor responsible for this story: Kirk Swanson at

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