The HR Legal News Blog

Keeping Mediations Confidential

The Oregon Court of Appeals has ruled that communications made during mediation proceedings must remain confidential even if a party to the mediation later sues his attorney for malpractice.

In Alfieri v. Solomon, 263 Or. App. 492 (Or. Ct. App. 2014), an attorney represented an employee in mediation proceedings arising from a wrongful discharge claim. Before the mediation began, the attorney informed the employee of his initial assessment of the claim. Although the parties did not agree to a settlement during the mediation conference, the mediator proposed a settlement package for the parties’ consideration. Following the mediation conference, the attorney significantly reduced his valuation of the employee’s claim. The parties eventually signed a settlement agreement that incorporated the mediator’s proposal. When the employee later consulted the attorney about the enforceability of the settlement agreement, the attorney did not report that the employer had failed to comply with certain elements of the settlement or that this failure might put the validity of the settlement into question.

The employee subsequently sued the attorney for malpractice and supported his claim with assertions relating to communications made before, during and after the mediation and settlement of the claim.   The Oregon Court of Appeals concluded that Oregon law protected the communications between the employee and his attorney regarding the terms and the amount of the settlement agreement, as well as their communications during the period prior to its execution. Noting that the mediation process ended when the settlement agreement was executed, however, the Court held that post-signing communications between the employee and the attorney did not take place in connection with the mediation process. As a result, these communications were not protected by Oregon’s mediation laws and, thus, could be disclosed by the employee.

This opinion would be interesting if only for its meticulous parsing of the mediation process. Two more important messages, however, can be found in this decision. First, no party can waive the confidentiality of the mediation proceedings on his own initiative. The employee was, in effect, hoist on his own petard when he tried to override the confidentiality of the mediation process in order to air his dissatisfaction with his attorney. Second, however, is the recognition that the mediation process—along with the related confidentiality obligations—does come to an end. Attorneys who advise parties to mediation would do well to remember this.