Orlofsky ADR Services

Can conduct in a mediation be the basis for an abuse of process claim?

Mediation abuse of processDon’t smirk at the facts. Really. There is an interesting legal issue here.

THI of New Mexico at Valle Norte v. Harvey, 2013 WL 235349 (10th Cir. 2013), begins when a resident of a nursing care facility suffers a priapism, which is a painful erection lasting more than four hours. This led to two surgeries, followed by a negligence claim against the nursing home for delaying his treatment and failing to provide proper post-surgery care. The bombshell allegation in the negligence claim was that the sequence of events led to an “amputation” of his penis. In mediation, plaintiff’s counsel demanded $850,000. The mediation failed, the claim was eventually dismissed, and it turned out that the explosive “amputation” allegation was false.

After the conclusion of the negligence claim, the defendant sued plaintiff’s counsel for abuse of process, alleging that the $850,000 demand in mediation, plus the failure to provide during the mediation a photograph that would have belied the amputation allegation, constituted an abuse of process, because it was an attempt to extort money based on false facts. The Tenth Circuit upheld the dismissal of that claim because under New Mexico mediation statute (which is very similar to the Illinois statute) all of the communications in the mediation were privileged and confidential and therefore could not be admitted into evidence to prove the abuse of process claim. The court found that even the act of withholding a photograph was a nonverbal “mediation communication” and therefore privileged and confidential. While this effectively immunizes the parties for conduct that occurs during a mediation, most courts agree this is necessary to enable the parties to talk freely during the mediation.

One caveat: both the New Mexico and Illinois statutes do allow the use of mediation communications to prove the commission of a criminal act, or the commission of professional misconduct. Thus, the plaintiff might have been able to disclose the mediation conduct at issue in a report to the appropriate authorities that a crime had been occurred, or that an attorney had committed an unethical act. What the evidence could not be used for, however, was to support a civil claim of abuse of process.


 Download PDF of THI of New Mexico at Valle Norte v. Harvey, 2013 WL 235349 (10th Cir. 2013)