Actors: The mediator; counsel for the defendant; and you, as counsel for the plaintiff.
Plot: During the course of the mediation, the defendant takes a position opposite to its stance in related state court litigation. Without disclosing the name of the federal case or any mediation documents, you inform the state court about the inconsistency, to demonstrate that the defendant is “talking out of both sides of its mouth.”
Issue: Are you subject to federal-court sanctions for breaching the confidentiality of the mediation?
At least one recent case suggests that the answer is “Yes.” As mediation becomes a more common means of dispute resolution, scenes like the one above, raising significant confidentiality issues, will arise more frequently.
How should mediation confidentiality be protected, and what penalty should follow when a party or counsel breaches confidentiality? In two leading decisions in 1995 and 1997, courts imposed sanctions to punish breaches of mediation confidentiality. Three later cases have continued the trend.
Taken together, however, the cases demonstrate some disparity in how courts address breaches of mediation confidentiality under similar factual circumstances, particularly with respect to the standard by which the conduct of parties and attorneys should be judged.