On December 1, 2017, Maryland Court of Special Appeals issued its opinion in Na v. Gillespie, a case involving a dispute about whether the parties had reached an agreement in mediation and whether mediation communications and documents were admissible evidence to prove the agreement’s existence.
The opinion makes some interesting points about mediation and confidentiality.
Mediation is confidential for the most part. The purpose of confidentiality is to have sincere settlement discussions without the fear of settlement proposals being used against the participants if mediation does not result in a settlement. Not everything disclosed in mediation is confidential, however. For example, facts that would otherwise be disclosed in an existing court case are not protected from being used in the case because disclosed in mediation. Na v. Gillespie discusses the scope of confidentiality in private, voluntary mediation.
Voluntary, Private Mediation: Na v. Gillespie confirms that Maryland court rules and statutes do not apply to voluntary, private mediation. Those rules and statutes apply to court-ordered mediation, and so the scope of confidentiality in court-ordered mediation.
Confidentiality & the Agreement to Mediate: An agreement to mediate is signed by all the mediation participants (parties, their attorneys, and the mediator), states the scope of services and fees, and addresses the scope of confidentiality of the mediation. Na v. Gillespie establishes that, in voluntary, private mediation, the agreement to mediate signed by the parties, their attorneys, and the mediator is a binding confidentiality agreement to the extent it contains confidentiality language. Said another way, the confidentiality of voluntary, private mediation is defined by the confidentiality language in the agreement to mediate.
This is where the Na v. Gillespie opinion raises some interesting issues.
First, Na v. Gillespie involves a dispute about whether an agreement was reached, or not, in mediation. It is undisputed that the parties left mediation without signing a written settlement agreement. The dispute centered around a list of terms and settlement discussions during the mediation and whether these amounted to an enforceable agreement. However, the Court of Special Appeals found that all communications and documents related to the mediation were confidential and, so, not admissible to prove the existence of the agreement.
So, it is important to be clear about whether, when, and what mediation communications and documents can be used to prove the existence of a settlement agreement. A practice pointer is for the agreement to mediate to clearly state what documents and mediation communications can be disclosed and submitted to the court in order to prove whether the mediation resulted in a settlement or not.
Second, the Court of Special Appeals confirmed that neither the mediator nor the attorneys could be called as witnesses to prove the existence of a settlement agreement. While not unusual, I have seen agreements to mediate that include exceptions to allow the mediator to testify about the existence (or not) of a settlement agreement or about the meaning of a disputed term in the agreement. A practice pointer is to be clear about whether and when a mediator and/or parties’ counsel can be called to testify to prove whether the mediation resulted in a settlement or not.
Third, the Na v. Gillespie opinion is so broadly written that I wonder about unintended consequences of this decision. For example:
- Could the confidentiality language of an agreement to mediate be read to mean that a settlement agreement reached during the mediation is itself confidential, even if the settlement agreement does not contain confidentiality language?
- Could a party use confidentiality language from an agreement to mediate to prevent the court from receiving the mediated settlement agreement and making it part of a court order or Judgment of Absolute Divorce?
- Could a party be sued for breach of confidentiality for disclosing information discussed in mediation with family? Friends? An attorney? An accountant?
In conclusion, Na v. Gillespie puts the spotlight on an often overlooked document – the agreement to mediate. While confidentiality fosters frank and productive settlement discussions, Na v. Gillespie makes clear that the confidentiality language in an agreement to mediate cannot be overlooked and deserves thoughtful review, discussion, and editing before signing and embarking on mediation.
The other lesson learned is that a settlement is not final until put into a signed writing or audio recorded and accepted as a binding settlement. Without that, one has nothing more than settlement discussions. And as Na v. Gillespie illustrates, confidentiality may make evidence of any oral agreement inadmissible.
Since 2002, Lindsay Parvis has represented clients in Maryland custody, divorce, and marital matters. She negotiates, litigates, and advocates for the best interests of her clients, whether in contested litigation, uncontested settlement, or premarital and other agreements. Her clients are not only spouses and parents, but also children whose interests she is appointed by the court to represent in contested custody litigation. She is a graduate of Mount Holyoke and University of Baltimore School of Law. Lindsay strives to improve Maryland law in the General Assembly, volunteering her time to monitor, advocate, and educate about legislative developments in family law. You can follow her on Linked In, Facebook, LindsayParvis.com, and subscribe to her Newsletter for discussion, news, and developments in Maryland family law.