Mediation communications are confidential; we know that. One may not use mediation communications in a later proceeding. What if attorney gave client bad advice during mediation? May the attorney use mediation confidentiality to torpedo client’s legal malpractice claim? Oregon’s Supreme Court answered that question in Alfieri v. Solomon, 358 Or 383 (2015). This post summarizes the court’s key points.
Facts and Trial Court Dismissal.
Attorney Glenn Solomon represented Client Phillip Alfieri and sued Mr. Alfieri’s former employer alleging discrimination and retaliation. The parties mediated. After the mediation session failed, the mediator proposed a settlement, and the parties agreed to a confidential settlement. Months later, Client Alfieri concluded that Attorney Solomon’s work was subpar, and he sued Attorney Solomon for legal malpractice.
Among other things, the legal malpractice complaint alleged Attorney Solomon’s advice concerning settlement negotiations was negligent. Simplified, his attorney argued, “Hey, Attorney Solomon’s advice was confidential ‘mediation communications.’ Client may not use attorney’s statements, and without attorney’s statements, client has no claim.”
In effect, attorneys are immune from suit for negligent advice during mediation, he argued.
The trial court agreed and dismissed the case.
Supreme Court: “Yes, but.”
RULE 1: Oregon’s Supreme Court agreed an attorney may use mediation confidentiality as a shield. It contrasted Oregon’s strict confidentiality with the Uniform Mediation Act, which allows disclosure for later legal malpractice lawsuits. The court suggested the legislature consider adopting the Uniform Act’s exception. (Footnote 10)
Nevertheless, the Supreme Court instructed the trial court to reconsider whether the allegedly bad advice constituted “mediation communications,” in light of its detailed interpretation of what constitutes “Mediation” and what constitutes “Mediation Communications.”
Defendant contended that all communications related to the mediation process are confidential regardless of when and where and with whom they occur. The Supreme Court disagreed.
The Court noted “mediation” is a process that (a) involves a mediator, and (b) it ends when there is a settlement agreement or the process is terminated. ORS 36.110(5). Consequently, RULE 2: on the “when” question, communications that take place after a settlement agreement is signed are not “mediation communications,” even if the topic is the mediation.
RULE 3: On the “with whom” question, before or after the formal session, a communication in connection with the mediation is confidential when attorney speaks (a) on behalf of client, (b) in connection with the mediation, and (c) to the mediator, the opposing party, or certain others.
What about attorney-client communications with no one else present or copied?
Defendant noted that confidential “mediation communications” include all communications in the course of, or in connection with, the mediation to “any person” present at the mediation proceeding. “Any person” includes attorneys and their clients, Defendant argued. So, any communications between attorney and client having to do with the mediation are confidential.
The court disagreed. “‘Mediation’ includes only that part of the process in which a mediator is a participant[,]” held the court. “Separate interactions between the parties and their counsel that occur outside the mediator’s presence and without the mediator’s direct involvement are not part of the mediation, even if they are related to it.” So, RULE 4: Private communications between attorney and client are not confidential pursuant to ORS 36.220. Of course, the attorney-client privilege applies, and the client may waive that privilege when he or she wants to sue the attorney.
If an attorney, in the presence of a mediator says to the client: “I really screwed up your case, you should settle for whatever you can get,” that admission cannot be used against the attorney. If he or she says it privately, then client may use it against attorney.
Jeff Merrick, Mediator