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Evidence & Civil Procedure: Mediation Privilege Protects Mediator & Attorneys

Posted by Ted A. Schmidt | Oct 19, 2015 | 0 Comments

Grubagh v. Blomo (Lawrence), 722 Ariz. Adv. Rep. 23 (App. Div. I , September 22, 2015) (J. Gemmill)


Plaintiff sues her attorney for negligent advice which led to her accepting a dissolution of marriage property settlement she now finds unfavorable.  The trial court ruled the mediation privilege was waived by the filing of the malpractice lawsuit and that communications between the plaintiff and her attorney before, during and after the mediation were discoverable and admissible.  The Arizona Court of Appeals accepted jurisdiction of plaintiff's special action and found the privilege was not waived. Consequently, so far as plaintiffs' allegations of negligence concern these privileged communications, they are stricken.

A.R.S. section 12-2238(B) creates a privilege for communications between parties their attorneys and a neutral (mediator). The statute specifies the only circumstances where this privilege is waived:

  1. agreement by all parties to mediation to a waiver/disclosure
  2. claim against the mediator for breach of legal duty
  3. disclosure required by statute
  4. disclosure necessary to enforce the agreement.

Filing a malpractice action does not fit within any of these exceptions. Unlike other privileges, like the attorney client privilege, the mediation privilege did not arise out of common law. As such, unlike common law privileges now codified in Arizona, there are no implied waiver provisions based upon previously recognized common law exceptions.  This comports with Arizona's long and strong policy of favoring settlement over litigation. Encouraging frank, open, honest and unguarded communication between mediator, attorney and client are good things and protection against being sued for what is said in this context is properly furthered. 

Finally, a party may not put another in the corner by making allegations that can only be disproved or challenged by waiving the privilege. The court of appeals found the better solution to be striking all allegations from the complaint or proof that depend upon these privileged communications.

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".


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