I stumbled across an article about a case filed in court, Jane Doe v Proskauer Rose LLP., U.S. District Court (D. C.), case No. 1:17-cv-00910-ABJ, that absolutely intrigues me as a mediator. Using the pseudonym Jane Doe, a female partner in the law firm’s District of Columbia office sued the firm for gender discrimination, claiming, among other things, that as a female partner she was paid less than less successful male partners and when she complained, the complaints were not investigated, and instead, hostility against her got worse.

Initially, the parties agreed to mediate before JAMS in its New York office.  Allegedly, during the first mediation session on March 23, 2017 one of the attorneys representing the defendant law firm, stated

“…that Doe need[s] to understand …you are going to be terminated. Your complaint upset a lot of people.”  (Law360-5/26 )

Having not settled the matter at mediation, Jane Doe filed suit in May 2017. The parties then attended a second mediation session in May 2017. At that session, Jane Doe learned that JAMS typically destroys notes of mediations about sixty days following a mediation. So, immediately after the second session Jane Doe’s attorney filed an emergency motion requesting the court to enter an order requiring JAMS to preserve the notes of the mediator and all other documents relating to the mediation, claiming that the notes would be critical to resolving a “he-said-she-said” dispute relating to the alleged retaliatory remark. (Law360-5/19) Initially, the court entered the emergency order but then vacated it, upon learning that JAMS had no intention of destroying such documents as it had been served with a subpoena for them. (Law360-5/26). In its original order, the court did note that just because the documents are to be preserved, this does not mean that they will be relevant or admissible. (Law360-5/19)

Several things intrigue me about this matter. Foremost is the conflict of laws on mediation confidentiality.  Will New York’s or District of Columbia’s law on this topic or the parties’ agreement apply?   Jane Doe is a partner in the firm’s District of Columbia (D.C.) office and filed her suit in the federal court in the District of Columbia.  So, does the D. C.  mediation law apply here?  D. C. enacted the Uniform Mediation Act in 2006 as Chapter 42 of its code. Section 16-4207 provides that mediations are confidential to the extent agreed upon by the parties or by statute, and while section 16-4205 provides exceptions to that confidentiality, none of them seemingly apply to this situation.  Further, the section on waiver of the privilege in section 16-4204 seemingly does not apply as well.

Or, one may argue that as the mediation occurred in New York, that state’s law on mediation is applicable. However, New York does not have a developed law on mediation confidentiality. Its statute is similar to Federal Rule of Evidence 408 which makes settlement discussions inadmissible only for certain purposes. (See, Section 4547 of the Civil Practice Law and Rules), and California Law Revision Commission Memorandum 2014-35 on Study K-402- August 28, 2014 at pages 32-40.)

And then, there is the confidentiality agreement signed by the parties. The standard JAMS agreement provides, among other things:

In order to promote communication among the parties, counsel and the mediator and to facilitate settlement of the dispute, each of the undersigned agrees that the entire mediation process is confidential.  All statements made during the course of the mediation are privileged settlement discussions, and are made without prejudice to any party’s legal position, and are inadmissible for any purpose in any legal proceeding.  These offers, promises, conduct and statements (a) will not be disclosed to third parties except persons associated with the participants in the process, and (b) are privileged and inadmissible for any purposes, including impeachment, under Rule 408 of the Federal Rules of Evidence and any applicable federal or state statute, rule or common law provisions.  (Agreement)

While each of the above statutes and Agreement addresses statements and discussions, none specifically address written materials. While, one may think that I am splitting hairs, this issue of written materials versus testimony came up during a recent meeting of the California Law Revision Commission in its Study K-402 on Mediation Confidentiality. It was brought to the Commission’s attention that while California Evidence Code section 703.5 provides that a mediator is incompetent to testify, it says nothing about the mediator’s notes or other written materials or evidence in her possession.  They are not specifically excluded from being subpoenaed. Consequently, the Commission will recommend that the written materials of a mediator be deemed incompetent as well, as part of its Tentative Recommendation.

No one knows how the federal district court in D. C. will ultimately rule on this issue. As noted in one of the articles on Law360, the court may well order that the documents be produced in camera or in a fashion that still preserves confidentiality. (Law360- 5/19). Or, the court mayt rule that the mediator’s notes are neither admissible nor  relevant. But, if the court rules to the contrary, does this mean that the mediator will then have to testify? What about mediator immunity? or incompetency to testify?

The fact that the judge is even considering it is intriguing. But, I guess, everyone is entitled to her day in court and to all available evidence. I am only hoping that mediation confidentiality is preserved, and the mediator’s notes are not  required to be produced.

Stay tuned for further developments.

… Just something to think about.

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