It’s unfortunate, but not surprising, and definitely ironic, that with the increased use of mediation, people will sue for conduct that occurred during a mediation. One recent example is Doe v. JAMS Inc., (2nd Cir. 2018), in which a partner in a prominent New York law firm sued for discrimination and retaliation and included an allegation that conduct by a representative of the defendant law firm during a mediation session constituted unlawful retaliation. Another recent example is Dauber v. Fargey, (D.Or. 2018), in which the plaintiff attended a mediation that failed, fired her lawyer, attended a second mediation with a new lawyer that succeeded, and then sued the first lawyer for malpractice, alleging that his failure to properly prepare for the first mediation caused unnecessary delay and expense in resolving her claim.
Both of these cases, however, illustrate the difficulty in bringing claims based on conduct in mediation, which is probably a good thing. Both decisions concern discovery disputes where the defendant asserted, with some success, that documents sought by the plaintiff were protected by the mediation privilege, which exists by statute in Illinois and most states. While the mediation privilege has limitations, it can often be a significant obstacle to presenting evidence of misconduct that allegedly took place in a mediation.