Protecting Your Privacy - When it comes to mediations, confidentiality isn’t guaranteed.

As published in CLM Magazine February 8, 2022. 

With the advent of the COVID-19 pandemic and lockdown orders, Zoom quickly became the platform du jour for mediations – allowing people to participate “live” from across state lines, borders, and continents. Against that backdrop, questions about which jurisdiction’s confidentiality laws would apply to any given mediation were called into question. The ultimate conclusion? In America, there is no absolute guarantee of confidentiality for mediation communications. Why not? Because there is no one national mediation confidentiality law in America.

Instead, federal rules of evidence, local rules of court, state statutes, and the Uniform Mediation Act (UMA) provide various protections for mediation confidentiality. Some states—like California—have strong mediation confidentiality statutes, while others not so strong. Accordingly, the confidentiality issue comes down to choice-of-law rules being applied by courts. What a court in one jurisdiction might protect as a confidential mediation communication, another may not.

Examples of this have been around for years, traditionally involving subpoenas and discovery requests for documents from a mediation held in a different action and possibly also in a different state, with the second court applying its own state’s law to determine the question of confidentiality of mediation communications in the prior matter. This is true even where there may have been a signed confidentiality agreement. [See, e.g., Larson v. Larson, 687 Fed. App’x 695 (10th Cir. 2017); People v. PwC, 150 A.D.3d 578 (N.Y. App. Div. 2017); and Hauzinger v. Hauzinger, 43 A.D.3d 1289 (N.Y. App. Div. 2007) aff’d, 10 N.Y.3d 923 (2008).]

Now, nearly two years into the great migration to online mediations, have there been any legal developments that might change that answer from the 2020 discussions? No. Are there any reported decisions on this issue involving online mediations? Also, no.

In what will be an interesting decision to watch for defense counsel and the insurance industry, the Florida Supreme Court has taken up the case of Mintz Truppman, P.A. v. Cozen O’Connor, PLC and Lexington Insurance Company (Fla. Apr. 26, 2021). There are a number of legal issues, but the core issue is whether the defense violated Florida’s Mediation Confidentiality and Privilege Act by attaching a pre-mediation settlement demand as an exhibit to its response to an attorney fee motion filed in the underlying federal court coverage case. That action was a first-party action against Lexington under a property insurance policy, the loss being water damage due to a broken pipe at the insured’s home. It was stipulated by the parties that the pre-mediation demand was a mediation communication as defined in the Act. The Florida Supreme Court case is in its final briefing stages and oral argument was requested.

To continue reading, click here: Protecting Your Privacy/Articles/CLM Magazine (theclm.org)

OTHER MEDIA

Click on The Title of Each Article or Presentation to Access the indicated Media

SELECTED PRESENTATIONS

  • Arbitration and Appraisal: Getting Past Splitting the Baby, panelist FDCC Winter Meeting (March 2022)

  • Cyber/Privacy Insurance Webinar, Panelist Live Webinar, FDCC (February 2022)

  • Mediating Data Breach, Ransomware, Cyber & Privacy Lawsuits, Panelist Live Webinar, The CLM (November 2021)

  • Let’s Talk Privacy! Impacts of Privacy Legislation + Lawsuits on our Practices, Clients + Firms, Live Webinar, FDCC (April 2021)

  • Is your Mediation Really Confidential? Live Zoom Discussion, 360° ADR – Midweek Talk (March 2021)

  • 9/11 Litigation and Mediation Lessons Learned, Live Webinar, FDCC (February 2021)

  • Mediating Cases Involving Liability When There is No Coverage - Part II: Cases with Both Covered and Non-Covered Claims, Live Webinar, CLM (December 2020) and Will Work for Food - The New Possibilities Hour Webinar Series (December 2020)

  • Coverage Issues Related to Data Breaches, National Law School of India University, Law & Technology Society, Live Webinar (October 2020)

  • Settlement and Assignment Following Breach of the Duty to Defend, American College of Coverage Counsel Annual Meeting (September 2020)

  • Virtual Mediation–Adapting To Our New Normal, American College of Coverage Counsel PopUp Live Webinar (August 2020)

  • “Guess What? Your Online Mediation is Not Confidential.”, Will Work for Food - The New Possibilities Hour Webinar Series (August 2020)

  • Online Mediation Confidentiality, Association of Attorney Mediators (July 2020)

  • Online Mediation: Prepare for Settlement Success – A Zoom Webinar for Attorneys, Live Webinar, Southern California Mediation Association (June 2020)

  • Mediating Cases Involving Liability When There is No Coverage - Part I: Americans with Disabilities Act (ADA) Cases, Live Webinar, CLM (April 2020)

  • Host and Presenter, FDCC Professional Women’s Forum, FDCC Winter Meeting, Scottsdale, AZ (March 2020)

  • Faculty, Insurance Coverage Training Academy: CGL Boot Camp, FDCC Winter Meeting, Scottsdale, AZ (March 2020)

  • Data Breach Litigation in the 2020 Landscape: Practical Tips and Strategies to Avoid the Pitfalls, Live Webinar, The Knowledge Group (January 2020)

  • Mediating Before and After Judgment, FDCC Annual Meeting, Sun Valley, ID (August 2019)

  • Legal Analytics,  Big Data and You: The Future of Litigation Management, How We Practice Law & Evolving Ethical Considerations – Tomorrow’s Tools Today, ADTA Annual Meeting, Austin TX (April 2018)

  • Insurance Masters Series: Cyber Claims and Legal Trends (November 2016)

  • Insurance Roundtable: Disruptors - Technology and Product Liability Exposures (June/October 2016)

  • Cyber and Data Breach Losses: Recent US Court Decisions, Risk Management & Investigations, London, England (May 2016)

  • INSURALEX Talks: Disruptors and Their Risks-Tomorrow's "New Normal" is Here. What Some of These Exposures Look Like for Insureds, Insurers and Risk Managers, Insuralex Mid-Year Meeting, Los Angeles, CA (November 2015)

  • Insurance Roundtable: Defending Bad Faith Claims (September 2015)

  • Insurance Roundtable: The Advice of Counsel Defense and Waiver of the Attorney-Client Privilege in Coverage and Bad Faith Issues (May 2014)

  • Insurance Roundtable: Coverage Issues Related to Data Breach, Cyber Liability, and Privacy Claims (March 2014)

  • Insurance Roundtable: Coverage Issues Related to Directors & Officers and Professional Liability Policies (June 2013)

  • Developing the Next Generation of Lawyers–Ethical Issues in Law Firm Management, ADTA Annual Meeting, White Sulfur Springs, WV (April 2013)

  • Tackling Tenders – Who’s on First? Priorities of Coverage and Tools for Responding to Tenders of Defense and Indemnity, CLM Insurance Bad Faith and Coverage Conference, Boston, MA (September 2012)

  • The Power of Persuasion, USLAW Network Women’s Collection Meeting, Austin, TX (April 2012)

  • Primary Exhaustion of Limits in Construction Defect Litigation, CLM Webinar (April 2012)

  • Technology for Lawyers - Best iPad Apps, FDCC Winter Meeting, Phoenix, AZ (March 2012)

  • Mediation Strategies and Effective Negotiation, USLAW Network Client Conference, Chicago, IL (2011)

  • Protecting Client Assets: Indemnity and Other Contract Terms - The Short List, USLAW Network Client Conference, Colorado Springs, CO (2010)

  • Handling California Claims – The Right Way, USLAW Network Conference, NYC (2010)

  • Litigation and Bankruptcy: Removal, Remand, Jury Trials and Everything in Between, USLAW Network Client Conference, San Francisco, CA (2009)

  • Hot Topics in Excess Insurance: A Survey of Underwriting, Claims Handling and Legal Developments, PLRB/FDCC Critical Issues for Senior Insurance Executives and In-House Counsel, Chicago, IL (2007)

  • Handle with Care: Discovery of Sensitive Information in the Coverage Action, DRI Insurance Coverage and Claims Institute (2007)

  • Insurance, Indemnity and Construction Defect Claims, USLAW Network Client Meeting (2007)

  • What’s Hot and What’s Not in the USA – Trends and Latest Cases, DRI International Liability Program, Sydney and Melbourne, Australia (November 2004)

  • Insurance Coverage for Employment Discrimination and Harassment Claims: Who Pays for Defense or Indemnity? DRI/FDCC/IADC and ATDA Joint International Conference, Barcelona, Spain (May 2004)

  • Construction Defects: Coverage Under Third Party Liability Policies, PLRB Meeting, Chicago (2004)

  • Policy Provisions, Endorsements and Exclusions - An Ever Changing Face in Construction Coverage, West Coast Casualty Seminar (2002)

  • Fundamentals of Insurance, California Continuing Education of the Bar

  • The Right to Independent Counsel, DRI

  • Litigation Avoidance Techniques, FDCC Litigation Management College, Northwestern University, Kellogg Graduate School of Management

  • The Anatomy of an Advertising Injury Claim, FDCC

  • Developments in Environmental Coverage Issues, FDCC

  • Insurance Litigation, National Business Institute

RESOLUTION.  closure.  Certainty.

CHECKMARK SCRIPT COPIED UNCOMPRESSED SCRIPT SEND INSTRUCTIONS DESKTOP MOBILE