{"id":475,"date":"2010-02-23T22:40:23","date_gmt":"2010-02-24T02:40:23","guid":{"rendered":"http:\/\/businessconflictmanagement.com\/blog\/?p=475"},"modified":"2010-02-23T22:40:23","modified_gmt":"2010-02-24T02:40:23","slug":"mediation-confidentiality-meets-attorney-malpractice","status":"publish","type":"post","link":"http:\/\/www.businessconflictmanagement.com\/blog\/2010\/02\/mediation-confidentiality-meets-attorney-malpractice\/","title":{"rendered":"Mediation Confidentiality Meets Attorney Malpractice"},"content":{"rendered":"

While working for a company, a guy opens up a competing business\u00a0and lures away customers.\u00a0 He is sued by his employer for fraud and breach of fiduciary duty.\u00a0 Prior to trial he participates in a mediation, that is unsuccessful.\u00a0 At trial he loses and is found liable for $364,000 in damages and $51,000 in attorney fees.<\/p>\n

\"amazement\"<\/p>\n

What does he do?\u00a0 What any red-blooded American would do — he sues his attorney in federal court for shoddy representation during the mediation.<\/p>\n

This is Fehr v. Kennedy<\/a>, No. 08-1102-KI (D. Or. July 24, 2009).\u00a0 The duplicitous employee (Fehr) claimed that his attorney (Kennedy) “failed to assess and advise\u00a0[Fehr] of the risk of going to trial and specifically discounted and contradicted the mediator’s assessment of the likelihood of success of [the employer’s] claims and the consequences of a loss at trial. Kennedy’s failures allegedly caused the Fehrs to reject an offer to settle the case which was much more favorable than the result achieved at trial.”<\/p>\n

(That really is unforgivable, isn’t it?\u00a0 I always remind counsel to bring their crystal ball with them when they come to the mediation — how could Kennedy have forgotten his?\u00a0 Anyway….)<\/p>\n

\"\"<\/a><\/p>\n

Kennedy’s argument is simple, if somewhat appalling:\u00a0 Fehr cannot prove his claim without revealing\u00a0confidential mediation communications.\u00a0 Kennedy, a communicant, does not consent to the disclosure.\u00a0 Therefore, Fehr cannot prevail, and summary judgment must be granted to Kennedy.<\/p>\n

\"\"<\/a><\/p>\n

The District Court agreed and made quick work of Fehr’s three protestations:<\/p>\n

1.\u00a0 This Isn’t the Same Case That Was Mediated<\/em><\/strong>.\u00a0 The Oregon mediation statute prohibits disclosure in the course of the same or\u00a0“ancillary” proceeding.\u00a0 Malpractice ain’t fraud, says Fehr, so the confidentiality statute doesn’t apply.\u00a0 No, says the court, the conduct alleged is sufficiently related to the prior proceeding, and the statute has been suffiently broadly interpreted, that this one counts too.<\/p>\n

2.\u00a0 Well Then It Must Be an Unconstitutional Constraint on Speech<\/em><\/strong>.\u00a0 No law, says Fehr, can constitutionally forbid talking about something (especially\u00a0about a tort) unless it is narrowly tailored, like admissions of liability made\u00a0during settlement\u00a0discussions.\u00a0 The statements at issue had no bearing on this type of statement — rather, they were themselves evidence of malpractice, and cannot be barred by statute.\u00a0 No, says the court.\u00a0 If you agree to participate in a mediation then you agree to abide by the rules,\u00a0as set forth in the Oregon mediation statute.\u00a0 One rule is that\u00a0you gotta shut up about mediation communications.<\/p>\n

3.\u00a0 It Was Not a Mediation Communication<\/em><\/strong>.\u00a0\u00a0Fehr is trying to prove that advice given by his lawyer was lousy, and wants to introduce that advice in evidence.\u00a0 He’s the client and\u00a0can waive his own attorney-client privilege, so why can’t he?\u00a0 No, says the court.\u00a0 The mediation confidentiality statute has no exception for attorney-client communications concerning the mediation.\u00a0 More to the point, in order to ascertain whether Kennedy gave bad advice the court would have to know what the other party offered and on what terms, what the mediator said to Fehr about the likely outcome at trial, what advice Kennedy gave Fehr about that offer, those terms and the mediator’s statements, and so on.\u00a0 No, says the court, no no no.<\/p>\n

\"\"<\/a><\/p>\n

Seems like a good outcome, doesn’t it?\u00a0 But I put it to you:\u00a0 What if your attorney is so poor that, relying on his advice, you miss a chance to settle a case and end up being screwed?\u00a0 Are mediation confidentiality statutes also attorney immunity statutes?<\/p>\n","protected":false},"excerpt":{"rendered":"

A case from Oregon assists in understanding the implications of mediation confidentiality on dissatisfaction with attorney performance.<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[14],"tags":[15],"class_list":["post-475","post","type-post","status-publish","format-standard","hentry","category-mediation","tag-mediation"],"aioseo_notices":[],"_links":{"self":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/posts\/475","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/comments?post=475"}],"version-history":[{"count":0,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/posts\/475\/revisions"}],"wp:attachment":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/media?parent=475"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/categories?post=475"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/tags?post=475"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}