Facilitated mediation is a process for resolving civil cases before trial or even before a case is filed. Mediation communications are confidential so the parties feel free to frankly explain themselves and their positions without worrying that their words may be used against them in the future. The Michigan Supreme Court’s decision in Tyler v Findling, ___ Mich ___ (2021) is an example of how serious Michigan courts are about mediation confidentiality.
The facts were fairly complicated. It is sufficient to note that, on the day of the mediation but before the mediator was present, two attorneys who were placed in the same room to wait for the mediator had a conversation about the case. During that conversation, the first attorney allegedly suggested his own client was a criminal. The other attorney surreptitiously recorded the conversation and tried to use it in a defamation case against the first attorney. The issue was whether the first attorney’s alleged statement was confidential and, therefore, could not be used against him in a later lawsuit.
The first attorney asserted that the Michigan Court Rule governing mediation broadly defined confidential mediation communications to include, “... statements whether oral or in a record, verbal or nonverbal, that occur during the mediation process or are made for purposes of retaining a mediator or for considering, initiating, preparing for, conducting, participating in, continuing, adjourning, concluding, or reconvening a mediation.” MCR 2.412(B)(2). Thus, even though the alleged defamatory statement (i.e., my client is a criminal) was made before the mediator arrived, it was made during the mediation process and, therefore, was confidential and could not be used against the attorney.
The Tyler case stands for the proposition the parties to a mediation may rest assured the statements made during the entire mediation process are confidential and cannot be used against them. So are their attorneys’ statements. However, it is worth noting that, in the Tyler case, the mediation was ordered by the court after the case was filed and, therefore, the court rule on mediation was clearly applicable. Accordingly, parties mediating before a case is filed may wish to enter into an agreement securing the same level of confidentiality conferred by the court rules.