Lawyers who handle mediations will want to be aware of this one.

After Grubaugh’s divorce was resolved by mediation she sued her lawyer for the allegedly bad advice during the mediation that led her to accept its result. The lawyer moved the trial court to order either that Grubaugh waived the mediation privilege (12-2238) or that she could not base her malpractice claim on communications she also had the right to keep privileged. The trial court accepted the “either” position, ruling that the claim waived the privilege. Grubaugh took special action.

The Court of Appeals accepted it and took the “or” position: Grubaugh did not waive the privilege but can’t sue based on privileged information. The traditional argument is that you can’t use a privilege as both a sword and a shield but the court says that while this applies at common law the mediation privilege is strictly statutory. Under the statute everything at mediation is inadmissible later unless the parties agree otherwise, disclosure is required to enforce the agreement or by another statute, or the information is relevant to a claim against the mediator. A malpractice claim against the lawyer isn’t one of those exceptions so Grubaugh didn’t waive the privilege by making one.

But the court then says in essence that since it would be unfair to prevent the lawyer from defending the malpractice claim, “striking from the complaint any claim founded upon confidential communications during the mediation process is the logical and necessary consequence of applying the plain language of this statutory privilege.” Sounds good but there really isn’t much more reasoning to it than that. The thought, presumably, if there was one, was that the legislature intended this result and that insulating lawyers from liability for malpractice during mediation was a policy decision within its power.

The court remands to let the trial court decide which communications were privileged and strike claims based on those.

The trial court had decided, according to the opinion, that the privilege did not apply because “the statute did not contemplate the precise issue presented.” Whether the opinion says it that way to make the ruling seem stupid we can’t and won’t say. Our guess, though, is that in context the trial judge was referring  to a constructive-intent argument, in which case – whether ultimately right or wrong – his analysis had at least as much legal thought behind it as the appellate court’s approach.

.(link to opinion)