Divorce mediation process privilege is a creature of statute with limited exceptions and no implied waiver of confidential communications in this Arizona case summary.
Special Action from Superior Court in Maricopa County
The ex-wife in divorce case filed a complaint against her former attorney (defendant) malpractice alleging substandard legal advice during family court mediation.
When the ex-wife filed her complaint and before formal discovery began, the defendant asked the court to order the mediation privilege waived so those mediation materials could be discovered. In the alternative, defendant motioned that if the privilege was not waived, then the court order all claims in the complaint based upon mediation be stricken to protect confidential communications.
The Superior Court ruled that the mediation process privilege was waived in the ex-wife bringing the malpractice lawsuit. The privilege was waived between the mediator and the parties and between the ex-wife and her attorney. (Because of the waiver, the request to strike was moot.)
The ex-wife filed a special action with the Court of Appeals to challenge the Superior Court’s order. The appellate court accepted special action jurisdiction because the “matter involving privilege and imminent disclosure of potentially privileged information” and appeal is an inadequate remedy. The Court of Appeals interpreted ARS § 12-2238(B) and the scope of Arizona’s mediation process privilege.
The Court of Appeals vacated the lower court’s ruling of waiver of mediation process privilege and ordered the Superior Court to strike, or dismiss, any claims or evidence from the ex-wife’s complaint that depended upon privileged mediation communications.
Broad Scope of Mediation Process Privilege in Arizona Law
The statute creating Arizona’s mediation process privilege is ARS § 12-2238(B)(2016) which states:
B. The mediation process is confidential. Communications made, materials created for or used and acts occurring during a mediation are confidential and may not be discovered or admitted into evidence unless one of the following exceptions is met:
1. All of the parties to the mediation agree to the disclosure
2. The communication, material or act is relevant to a claim or defense made by a party to the mediation against the mediator or the mediation program arising out of a breach of a legal obligation owed by the mediator to the party.
3. The disclosure is required by statute.
4. The disclosure is necessary to enforce an agreement to mediate.
5. The disclosure is made in a report to a law enforcement officer, the department of child safety or adult protective services by a court appointed mediator who reasonably believes that a minor or vulnerable adult is or has been a victim of abuse, child abuse, neglect, exploitation, physical injury or a reportable offense.
Furthermore, ARS § 12-2238(C) protects the mediator, specifically, against being forced to testify or produce evidence.
Interpreting Arizona’s Mediation Process Privilege
Looking at the plain meaning and “clear and unequivocal language of the statute,” none of the statutory exceptions allowed for waiver and disclosure of confidential privileged communications from mediation. Nor is there an exclusion from non-discovery or process for attorney-client communications relating to the mediation process. The appellate court referred to the statute’s “broad screen of protection.”
Complementary rules support the “wide-reaching” privilege, such as ARFLP Rule 67(A) which requires “mediation conference shall be held in private, and all communications, verbal or written, shall be confidential.” The Maricopa County Local Rules (Rule 6.5(b)(1)), emphasize that the only exceptions to mediation confidentiality are those set forth in ARS § 12-2238(B) itself.
The legislative history also supports a broad privilege in mediation. By comparison, in 1991 then ARS § 12-134 limited only the “communications made during a mediation” as confidential. The current statute makes the whole “mediation process” confidential.
Mediation Process Privilege Is Different from Attorney-Client Privilege
The mediation process privilege is not analogous to the attorney-client privilege. The attorney-client privilege has its roots in the common law, whereas the mediation process privilege is entirely a creature of statute with no common law origin.
The common law as codified in Arizona statutory law, an implied waiver of attorney-client privilege arises when the client’s course of conduct is inconsistent with the privilege. For instance, when the client offers herself as a witness and voluntarily testifies with reference to the privileged communications.
There is no implied waiver of mediation privilege, only the listed exceptions in the statute. The Court of Appeals stated how the mediation privilege encourages candor with the mediator and that “ARS § 12-2238(B) establishes a robust policy of confidentiality of the mediation process that is consistent with Arizona’s ‘strong public policy’ of encouraging settlement rather than litigation.” Citing Miller v. Kelly, 212 Ariz. 283, 130 P3d 982 (Ariz. Ct. App. 2006).
Another important consideration is the privilege the other mediating party holds. The ex-husband, as a non-party privilege-holder to the current lawsuit, should have his privilege protected. Waiving the privilege to the ex-wife may have the practical effect of waiving the privilege to all involved.
In its decision, the appellate court held that “all materials created, acts occurring, and communications made” between or among the ex-wife, her attorney, or the mediator as part of the mediation process are confidential. Because the privilege had not been waived, such communications as part of mediation are “neither discoverable nor admissible.”
Motion to Strike Claims Involving Confidential Mediation Process
Regarding claims based upon privileged information, application of the mediation process privilege requires striking all claims, or allegations, in the ex-wife’s complaint, even if doing so means she is unable to prevail in a malpractice case. (Agreeing with the California opinion in Cassel v. Sup. Ct., 244 P3d 1080 (Cal. 2011).)
The Court of Appeals reasoned that, to permit otherwise, would allow ex-wife to proceed with a claim mostly on the strength of confidential communications “while denying the defendant the ability to fully discover and present evidence to the defense of that claim.” Invoking the privilege is not to be used to unfairly prevent the other party from defending against the claim.
Grubaugh v. Hon. J.T. Blomo, Lawrence, et al, 1 CA-SA 15-0012 (Ariz. Ct. App. Sept. 22, 2015)
For precise language, read the court’s original opinion. Legal citations omitted.
To learn more about the mediation process in family law proceedings, take a look at how to avoid a divorce trial with mediation.