Law Lessons from Anthony v. Andrews, 2009-Ohio-6378.

Under the applicable law in this case (Ohio), mediation communications are privileged against disclosure. Moreover, a “mediation party may refuse to disclose, and may prevent any other person from disclosing, a mediation communication.”

In Ohio, a “mediation communication” is defined as “a statement, whether oral, in a record, verbal or nonverbal, that occurs during a mediation or is made for purposes of considering, conducting, participating in, initiating, continuing, or reconvening a mediation or retaining a mediator.”

In the instant case, a party was sanctioned for failure to proceed in good faith to reach a compromise agreement. In reaching its decision, the trial court reasoned that approximately 90 minutes after the session began, the party’s counsel informed the Mediator that his client would not give her consent to settle the instant matter nor had she ever given consent to do so.”

The appellate court determined that the privileged mediation communication that the client would not give her consent to settle was not permitted to be disclosed in the mediator’s report. The mediator was only allowed to disclose whether the mediation had occurred or terminated, the statute does not permit for the reasoning to be disclosed. The statute also expressly provides a privileged communication disclosed by a mediator “shall not be considered by a court, administrative agency, or arbitrator.” The issuance of sanctions based on privileged mediation communication was an abuse of discretion.

[In contrast, see: In re A.T. Reynolds & Sons, Inc., UNITED STATES BANKRUPTCY COURT, SOUTHERN DISTRICT OF NEW YORK, POUGHKEEPSIE DIVISION, Case No. 08-37739, .Chapter 11]

See related Blog Post, published in the Adjunct Law Prof Blog.

See also related Blog Post, published in Disputing, Conversations about Dispute Resolution.

See my related Blog Posts:

• Are mediation confidentiality statutes also attorney immunity statutes?; and
• Despite all efforts to the contrary, the process of mediation may turn out NOT to be confidential; and
• Failure to obey an Order of Referral to Mediation (including the failure to make timely payment to the mediator) may result in the imposition of costs or fees on the defaulting party; and
• ADDESA: A property settlement agreement resulting from a voluntary mediation, like any privately negotiated PSA, may be reformed where there is unconscionability, fraud, or mistake and concealment

In N.J., mediation is governed by The Uniform Mediation Act (”UMA”), N.J.S.A. 2A:23C-1 to -13.

See related Blog Post: What Does A Court Mean When Litigants Are Ordered To “Mediate In Good Faith?”, published in the Law Office of Donald D. Vanarelli Blog.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

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