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Page 1 of 9  For connoisseurs of mediation technique the celebrated “Girls Gone Wild” litigation in the Florida courts offers a feast of material. This is the case in which one Joseph Francis, owner of the eponymous film company, was sent to prison for his conduct in a mediation. He had arrived four hours late, “wearing sweat shorts, a backwards baseball cap, …barefoot and …playing an electronic devise (sic)”. In the course of a brief hearing he shouted “We will bury you and your clients. I’m going to ruin you, your clients and all of your ambulance-chasing partners.” He then charged bodily at Plaintiffs’ counsel who testified subsequently “I thought he was going to slug me.” All of this took place in the presence of a mediator previously commended to him by the Judge in terms which any of us would be proud to see in the Legal 500:
“…Dom Caparello is one of the most tenacious mediators, and somewhere in his family tree there has to be a snapping turtle because he does not turn loose.” Sadly Francis proved immune to Mr. Caparello’s skills. The latest twist in the Girls Gone Wild saga is Mr Francis’ appeal on the grounds that District Judge Smoak sanctioned him in breach of the Florida law on mediation confidentiality. This, he argues, should have prevented the investigation of any conduct at a mediation short of actual physical violence . Mr Francis is not alone in being preoccupied with mediation confidentiality. Here in the UK three slightly more prosaic court decisions have prompted expressions of grave concern from senior figures in the mediation world and calls for urgent legislation to introduce a new “mediation privilege”. - In Brown v Patel a court admitted evidence of the negotiations at a mediation in order to determine whether a case had been settled or not.
- In Cattley v Pollard a party to a mediation was ordered to give disclosure of mediation documents which were relevant to damages issues in subsequent proceedings.
- In Malmesbury v Strutt and Parker the Judge made his ruling on costs after considering, among other things, evidence led by both parties as to the offers each had made at a mediation.
In the face of this three-pronged attack the mediation world, like the cast of Dad’s Army, seems to be divided between the “don’t panic” and the “we’re all doomed” schools of thought. The position of the ADR Group seems somehow to illustrate this. When intervening in Brown v Patel counsel for the ADR Group is at least reported to have argued that the court should recognise a strong form of mediation privilege protecting all mediation material permanently with no or minimal exceptions. Yet when the desirability of introducing a new mediation privilege was fully debated at last year’s excellent ADR Group conference in Oxford, delegates voted by a significant majority against any change in the law. One reason for this lack of consensus is undoubtedly the sheer complexity of the law in this area. Even litigation lawyers find it difficult to advise their clients. Pity then the poor old mediator who has hitherto taken a professional pride in forgetting any law he or she ever knew. But judging by the perennial appearance of this issue on conference and seminar agendas it looks as if the mediation world is prepared to make the effort. This article tries to address these questions: - Why do mediators care about the scope of confidentiality and privilege?
- When will the Courts permit the disclosure of documents or discussions that are generated at mediations?
- Should mediators be worried or is the present state of the law acceptable ?
- Do we need legislation to introduce a new “mediation privilege”?
- Do the overseas jurisdictions offer any obvious solutions?
- Will the new EU Mediation Directive be the means to trigger any necessary legislation?
- How do we take the debate forward and how in the short-term should mediators conduct themselves given the present state of the law?
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