Orlofsky ADR Services

Are Your Mediation Communications Confidential?

The Illinois Uniform Mediation Act provides that, with narrow exceptions, communications in a mediation are privileged and, if the mediation agreement so provides, confidential. Since most mediation agreements provide that all mediation communications are confidential, it would appear that, on the surface, comments made in a mediation are protected against most attempts to use them outside of the mediation.

However, in Thiems v. United Fire & Cas. Ins. Co. (S.D. Ill. March 26, 2021), the plaintiff sued their insurance carrier based on conduct in a prior lawsuit, and the plaintiff sought to admit into evidence remarks by a mediator during a mediation in that underlying lawsuit. While the court barred the discovery based on relevance, it made this curious statement:

“The Court agrees with Plaintiff that neither the Illinois Uniform Mediation Act’s provisions regarding confidentiality (710 ILCS 35 et seq.) nor the Mediation Agreement between the parties in the underlying case have application in this case – litigation between United Fire and its insured, Thiems.”

The notion that the UMA does not apply in subsequent litigation because the parties in the later litigation differ is by no means settled law. Compare, Accent Delight International Ltd. et al v. Sotheby’s et al, (S.D.N.Y. 2020) (applying a heightened burden on the party seeking the discovery of mediation materials from a prior lawsuit). How courts rule on this varies, depending upon the applicable state law, the language of the mediation agreement, and many other factors. What Thiems shows, however, is that the applicability of mediation privilege and confidentiality in a subsequent case raises complex legal issues.

Practice ramifications: A full discussion of the law on the confidentiality of mediation materials in subsequent litigation requires a much lengthier discussion. The recent Thiems decision, however, shows that the law is complex and therefore somewhat unpredictable. This might lead the lawyer participating in a mediation where there is a chance of a subsequent lawsuit raising issues about what happened in that mediation to be cautious about the kinds of remarks made during the mediation. Such caution, however, might decrease the mediation’s chance of success. Counsel will therefore need to weigh the benefits of protecting a client from the potential use of mediation communications in some theoretical future piece of litigation against the benefits of doing everything possible to make the current mediation successful.