The Mediation Privilege

• Publication year: 2000
• Pages: 65
• Citation: Vol. 29 No. 11 Pg. 65

29 Colo.Law. 65 Colorado Lawyer 2000.

2000, November, Pg. 65. The Mediation Privilege

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65

Vol. 29, No. 11, Pg. 65

The Colorado Lawyer
November 2000
Vol. 29, No. 11 [Page 65]

Specialty Law Columns
The Civil Litigator
The Mediation Privilege
by Patrick F. Kenney

Confidentiality, based on statutory privilege, has long been the basis for frank disclosure between client and advocate patient and doctor, and priest and penitent. This workhorse recently has been harnessed to the carriage of mediation Unlike the attorney-client privilege, the mediation privilege provides for confidentiality between adversaries and between a mediator and the attorneys and litigants he or she serves This article discusses confidentiality issues in mediation.

Background

Despite Colorado’s recent unprecedented growth, Colorado’s state court system has managed to maintain a high rate of cleared cases compared to those of other states.1 Although no study has yet explained this outstanding performance, it seems likely that the rate of cleared cases has been enhanced by the increased use of both private and state-sponsored mediation.2 Statistics are not maintained for private mediation, but there is substantial anecdotal evidence of the increased use of private mediation.

State-sponsored mediation is more easily measured. Colorado’s Office of Dispute Resolution ("ODR") estimates that in 1999, Colorado judges sent 8,500 cases to ADR. Perhaps the majority of those cases were mediated.3 The increased use of all types of ADR, and especially mediation, suggests that the integrity of the mediation process is of increasing importance to the overall judicial system.

The integrity of the mediation process, in turn, rests on confidentiality. Indeed, mediators are under a duty to provide the maximum amount of confidentiality allowed by law.4 Candor is required for mediated settlements, and candor is much less likely when a party’s words, spoken in earnest and in furtherance of reaching a fair resolution, may be flung back at him or her in court. Colorado’s legislature has seen fit to give confidentiality in mediation a rock-solid foundation by means of the Colorado Dispute Resolution Act ("Act").5 The Act creates a mediation privilege against compelled testimony and discovery.6 The mediation privilege rests with the parties to the mediation and the mediator.

The remainder of this article reviews the history and the scope of the mediation privilege, the exceptions to the privilege, and the likely judicial interpretation of the privilege by Colorado appellate courts.7 It also discusses a recent federal case in which a judicial interpretation of the California mediation privilege led to a mediator being compelled to testify to mediation communications, despite the existence of a strong mediation privilege.8 Nonetheless, litigants and mediators may take heart, for, as discussed below, it seems unlikely that Colorado appellate courts will follow suit.

This article does not address the federal counterpart to the Act, the Alternative Dispute Resolution Act of 1998.9 Generally, it has received little attention, and the federal confidentiality provisions are still in the implementation stages.10

History and Scope of the Mediation Privilege

The Act, written in 1983, created the ODR. As originally written, the Act only applied to those mediation conferences that were conducted through the ODR and only to those mediators who were associated with the ODR.11 Subsequent amendments enlarged the Act’s applicability to all mediation conducted in Colorado, whether state-sponsored or private, and to all mediators, and strengthened the initial confidentiality provision. Today, the Act provides:

Applicability—This part 3 shall apply to all mediation services or dispute resolution programs conducted in this state, whether conducted through the office of dispute resolution or through a mediator or mediation organization.12 (Emphasis added.)

The three terms italicized above are each defined by the Act in a manner consistent with the application of the privilege to both state-sponsored and private mediation. "(M)ediation services" is defined as "a process by which parties involved in a dispute, whether or not an action has been filed in court, agree to enter into one or more settlement discussions with a mediator in order to resolve their dispute."13 "(M)ediator" means "a trained individual who assists disputants to reach a mutually acceptable resolution of their disputes by identifying and evaluating alternatives."14 Finally, the term "mediation organization" is defined as "any public or private corporation, partnership, or association which provides mediation services or dispute resolution services or dispute resolution programs through a mediator or mediators."15 Nothing in these definitions or in the substantive portions of the Act itself suggests that the privilege applies only to state-sponsored mediation as opposed to private mediation.16

The 1983 provision for confidentiality was a relatively weak evidentiary prohibition. It gave mediation communications the protection then provided for in the evidentiary rules, Colorado Rules of Evidence ("C.R.E.") 408, regarding settlement discussions.17 The provision protected admissions, representations, and statements made in mediation and also protected the mediator from process requiring disclosure. Concerning confidentiality, the 1983 Act provided:

Confidentiality—Dispute resolution meetings may be closed at the discretion of the mediator. Mediation proceedings shall be regarded as settlement negotiations, and no admission, representation, or statement made in mediation not otherwise discoverable or obtainable shall be admissible as evidence or subject to discovery. In addition, a mediator shall not be subject to process requiring the disclosure of any matter disclosed during mediation proceedings.18

C.R.E. 408 allows the admission of evidence offered for any purpose other than to, "prove liability for, or invalidity of the...