Mediation Confidentiality Narrowed – Doublevision – Indeed!

Doublevison Entertainment v. Navigators Insurance

Limited Scope of Mediation Privilege.

“The mediation privilege is reserved for statements and communications made during the mediation, and, as discussed in more detail below, for a limited range of communications created immediately before and after the mediation.”

“In accordance with the plain language of Section 1119, this order now protects oral and written statements and communications — evidence of anything said — made during the mediation. Navigators, however, argues that the mediation privilege protects conduct, communications, and written materials related in any way to the mediation. This overreaches. Conduct is not protected by the mediation privilege, nor does Section 1119 use the language “related in any way” to a mediation.”

Emails in preparation for Mediation are not within the Privilege.

The email contained the word mediation, but a mere reference to a mediation in the near future does not bring this email within the scope of the privilege.

Statutory Mediation Trap

“The statutory conditions for termination of the mediation occurred when no communications between the parties and the mediator arose for ten calendar days.”