Violate Mediation Confidentiality? Case Dismissed!

J. Michael Hand didn’t like the Walnut Valley Sailing Club’s storage shed.  A member of the club, though not disabled himself, Mr. Hand thought the structure didn’t comply with the accessibility requirements of the Americans with Disabilities Act.  So he sued.

The Walnut Valley Sailing Club didn’t like being sued, and it terminated Mr. Hand’s membership in the club.

Mr. Hand didn’t like getting terminated, so he sued again, this time for unlawful retaliation under the ADA.

The U.S. District Court for the District of Kansas ordered the parties to mediation, which proved unsuccessful.  And after the mediation Mr. Hand sent an e-mail to at least 44 club members (and others) disparaging the club’s positions and relating all the details of the mediation, including what the mediator said and the amount of the club’s settlement offer.

The District Court didn’t like that.  Indeed, it didn’t like it so much that it dismissed Mr. Hand’s suit with prejudice, by way of sanction.  Mr. Hand did what any good American would do — he appealed to the Tenth Circuit Court of Appeals.

The Tenth Circuit, in an opinion dated April 4, 2012, offered little comfort to Mr. Hand.  The Tenth Circuit noted that the claimant had “demonstrated complete disrespect for the confidential mediation process,” in which “an assurance of confidentiality encourages parties to participate in mediation with candor and is essential to the success of mediation programs,” particularly those in which participation is mandated by the court.

The people who received this confidential information included club members who might testify as to the ultimate question of the case — why Mr. Hand was expelled from the club.  Along with the animosity engendered by Mr. Hand’s disclosures — to which the club could not reply without itself revealing confidences — no sanction short of dismissal “would adequately admonish [Mr. Hand] for his complete disregard for and willful violation of the confidentiality rule, deter similar conduct by others in the future, restore respect for [the] Court’s authority, repair the damage caused by [Mr. Hand] to the integrity of the Court’s ADR program, and minimize prejudice to the [club].”

Affirmed, said the Tenth Circuit, applying the standard of abuse of discretion.  “Mr. Hand committed a serious violation of the confidentiality rule.  He didn’t just share a few tidbits about the mediation with a friend, he revealed extensive and prejudicial details about the mediation to over forty people, many likely witnesses in the case.  And he did so not accidentally but intentionally.”

Now, as Robert Frost wrote in “Mending Wall,” Spring is the mischief in me.  Why, really, are litigants cautioned to treat mediation communications in confidence.  Isn’t it where there are juries, or judges, or folks who might get diverted by knowing that a party once offered money to get out of the case?  But there are no juries here.  Those that heard the information were witnesses at most.  And if a witness knew about the settlement discussions, does that change the witness’ testimony as to what happened two years ago when Mr. Hand was kicked out of the club?

The rationale behind mediation confidentiality is the same behind Federal Rule of Evidence 408.  The communication is privileged and inadmissible in order to serve the public policy of encouraging settlement and in order not to place before a trier of fact information that is not probative and may be prejudicial.

But does it taint a witness?  Does it damage the integrity of a court-ordered ADR program?  Or did it just tee off the court?


  1. Confidentiality is a bedrock principle essential to free, unfettered exchange of information, facts, opinions, offers, proposals and negotiation. In this case, the deliberate breach got out of “hand” sand did irrevocable damage to this process.
    Wide dissemination just worked to tip the court’s “hand’ against Mr. Hand.
    One lesson: count to ten before sending. And there are ten fingers on your hands.
    The court handed down the right decision.

  2. Thank you for sharing this example of confidentiality in mediation. I’m a Seattle Family Mediator and I often have clients ask questions during opening statement regarding the confidentiality clause. After explaining the meaning of confidentiality in mediation it is nice to follow up with specific case examples. Thanks again!

    Ivy Roberts
    Seattle Based Mediator

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