If nothing is ever as simple as it looks, then the seemingly simple rules of mediation confidentiality are particularly complex. A group of colleagues was discussing the following hypothetical and could reach no clear conclusion:
A mediation session concludes with defendant’s counsel agreeing to revert to his (governmental) client to determine if an offer could be made along certain suggested lines. A week later, counsel phones the mediator and directs that the offer can, in fact, be conveyed. But the mediator can’t get the plaintiff’s counsel to call her back. After many attempts, the mediator faxes a letter to plaintiff’s counsel, generally outlining the offer. But she hears nothing.
Some months later, the mediator learns from the plaintiff that his claim was dismissed at summary judgment and, by the way, why did the defendants never get back about that final proposal? The mediator says that they did make the proposal. The plaintiff becomes upset and says that his (former) lawyers apparently never conveyed it to him. Plaintiff asks what the terms of the offer were.
OK, students, here are your three questions:
1. May the mediator tell the party the terms of the offer?
2. If the former client wishes to report his former counsel to a professional disciplinary body, alleging violation of Rule 1.2(a) of the Model Rules (requiring, among other things, that “a lawyer shall abide by a client’s decision whether to settle a matter”), may the mediator comply with plaintiff’s request to confirm, in writing, the fact that she conveyed a settlement offer to plaintiff’s former counsel?
3. If the mediator is an attorney, is she under an ethical obligation, pursuant to Model Rule 8.3, to report the offending counsel’s apparent dereliction to the state bar?
As to (1), I think it’s pretty clear the answer is yes. Any rule that says a mediator can’t tell a party what offers were made as to his own lawsuit would be pretty nutty.
As to (3), I think it’s pretty clear the answer is no. The mediator only knows of her efforts to convey an offer. She doesn’t know what happened thereafter.
As to (2), what think you?
I think that the mediator should be able to confirm in writing to the plaintiff the fact that the mediator conveyed the offer to the plaintiff’s former counsel. The offer was obviously given to the mediator with the intent that it be passed on to plaintiff and plaintiff’s counsel, who for some reason dropped the ball.
I am speaking purely from an ethical point of view and not commenting on the ramifications of mediation confidentiality law in California, which is where I practice and where we can sometimes get surprising results with regard to the evidence can be admitted (or excluded) concerning communications that took place in and around a mediation. This one could be a close call.