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Exceptions to Mediation Confidentiality

by Brian R. Jerome, Esq.

In an important decision, the Appeals Court has decided in ZVI Construction Company, LLC v. Levy, et al., (Docket No. 15-P- 359) (Oct. 6, 2016) that Massachusetts should not recognize a “fraud exception” to the confidentiality of mediation among business litigants who were represented by counsel. Judge Cynthia J. Cohen wrote on behalf of the Appeals Court that whether to recognize a fraud exception to the confidentiality of mediation communications has been “an undecided question in Massachusetts.” In rejecting a fraud exception, she noted that by passing G.L.c. 233, §23C (Massachusetts’ Mediation Confidentiality Stature), the legislature “has recognized the importance of preserving the confidentiality of communications made during mediation,” She also noted that even the drafters of the Uniform Mediation Act, adopted by 11 states and Washington, D.C. “specifically considered and rejected” a fraud exception to the protection given to mediation communications.

In ZVI a contractor alleged that it had reached an agreement with a business at a mediation whereby the business, about to receive a $250,000 payment from a former partner to settle a separate dispute, fraudulently represented that the money would be received and then passed through to the contractor. When it was not so paid, the contractor sued the business and theirattorney and firm, saying the attorney fraudulently induced it to settle with a statement he had allegedly made during mediation that the funds would be transferred when received. The full text of the opinion can be accessed at : https://www.mdrs.com/wp-content/uploads/2016/10/ZVICONSTRUCTIONCOMPANYLLCvs.FRANKLINLEVYanother.pdf

This decision is important because confidentiality is at the heart of every mediation. It is what allows for candid disclosures of private information and creates and preserves a sense of security for the parties during settlement discussions in order to generate the possibility of settlement. It is in essence an assurance that that no damage will be done to their legal case by what is done and said during the mediation.

The Massachusetts Mediation Confidentiality Statute, General Laws c. 233, s. 23C, is now over 30 years old and was created when mediation was in its infancy in Massachusetts. Yet there have been very few cases presented seeking exemptions from its blanket privilege against disclosure of information shared in the presence of a qualified mediator, despite the revolutionary expansion of the mediation field.

The recent decision in the ZVI case correctly states that s.23C does not include an exception for fraud, nor did the further written mediation agreement entered into by the parties with the assistance of counsel. As such, the Court correctly refrained from creating a fraud exception to s.23C nor the confidentiality agreement separately entered into by the parties.

Some eleven states, but not Massachusetts, have adopted the Uniform Mediation Act (UMA) which carves out certain exceptions to non-disclosure where the societal interest in obtaining information contained in mediation communications may be said to outweigh its interest in the confidentiality of the mediation process. Examples of this include, but are not limited to, communications concerning commission of or planned commission of a crime, child abuse and neglect, evidence that a person poses a danger of physical harm to himself or others, to prove or disprove a claim of professional misconduct or malpractice filed against a party or mediator, and allowance for a waiver of privilege by the parties. As noted by the ZVI Court, an exception for fraud was considered by the authors of the UMA but not included as an exception.

While some commentators suggest that some reforms to s. 23C may be worthy of consideration, where grave injustices to the otherwise unprotected or vulnerable may occur without disclosure, it more appropriately should be the legislature’s function and not the Courts to carve out such limited exceptions in Massachusetts.

Fraud however, by definition, involves misrepresentation of material facts to induce action with detrimental reliance, all factors subject to interpretation and vagaries. As in ZVI, parties, particularly those who are represented by counsel, most often have information about their opponent’s proclivities, can exercise due caution during the mediation process to avoid blind reliance on representations proffered to them and often have independent means of obtaining supporting evidence of fraud and avenues of recovery available to them.

As experienced mediators know, misrepresentations or mischaracterizations of facts is unfortunately not a rare or unique occurrence at mediations, and are more often than not appropriately dealt with within the confines of the confidential mediation session itself. That having been said, law makers should be concerned about the chilling effect on mediation confidentiality that would occur if the broad area of fraud is categorized as an exception to non-disclosure.

Question is raised for your consideration: Do you feel that any reforms need to be made to the Mediation Confidentiality statute in Massachusetts or, do you feel that it continues to properly serve the important interest in mediation confidentiality and, as such, if it is not broken, why fix it?

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