Case Summary: Alford v. Long, 137 S.W.3d 916 (Tex. Ct. App. 2004)
This case considers whether, in a subsequent legal malpractice action against her attorney for failure to disclose risks of settlement in a mediation, a party can “offensively” use the statutory mediation confidentiality provision to prevent a mediator from testifying as to the substance of a discussion held during a mediation.
A party seeking to assert the mediation confidentiality privilege [Tex. Civ. Prac. & Rem. Code Ann. §154.054 (Vernon Supp. 2004)] will be deemed to have waived that privilege when: (1) that party is seeking affirmative relief; (2) the privileged information sought, if believed by the factfinder, would most likely be outcome determinative; and, (3) the disclosure of the privileged information is the only manner in which the aggrieved party could obtain the evidence.
A roofing contractor sued Bryant for payment of the installation of a new roof on Bryant's residence. Bryant then hired attorney Long to represent her in this action. During mediation, the parties signed a written settlement agreement settling all claims between Bryant and the contractor, except for litigation and attorney's fees. A trial court determined this remaining issue by requiring each party to bear its own costs and attorney's fees. Bryant then sued Long for legal malpractice for failing to disclose the risks and benefits of settlement, including the possibility that the trial court could deny Bryant her attorney's fees. In response, Long claimed that she had fully disclosed the risks of settlement, including the risk that the trial court would not award attorney's fees to Bryant. According to Long, the only people present during the risk-benefit discussion were Bryan, Long, and the mediator. At trial, citing one of the confidentiality provisions of Texas ' alternative dispute resolution procedures, the court denied Long's request to call the mediator to testify regarding the substance of the disclosure.
The court ultimately reversed the decision of the trial court finding that the trial court had abused its discretion when it precluded the mediator from testifying. The applicable Texas statute stated that “unless expressly authorized by the disclosing party,” the mediator “shall at all times maintain confidentiality with respect to the communications relating to the subject matter of the dispute.” The next provision provides that “unless the parties agree otherwise, all matters…are confidential and may never be disclosed to anyone.” Here, the court found that this provision did not preclude the mediator from disclosing the confidential communications because: (1) Bryant, who was invoking the privilege, was seeking relief; (2) the evidence was outcome determinative; and (3) Long could not obtain this evidence in any other way. Therefore, a party cannot “offensively” use the statutory mediation confidentiality provision to prevent a mediator from testifying as to the substance of a discussion held during a mediation when the testimony would be outcome determinative and the aggrieved party has no other means to secure such evidence. An interesting side-note to this case is the fact that the mediator did not oppose to being a witness in the trial. Thus, the court did not need to determine whether the mediator could assert the confidentiality privilege when both parties had waived it. Given the language of this statute, “unless the parties otherwise agree,” it does not appear that the mediator holds the privilege.