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According to the Virginia Supreme Court, wrongful death settlements reached during mediation are public records subject to disclosure once filed with the court as required by Virginia law. Accordingly, the settlements are not protected by Virginia’s mediation confidentiality statute.
In Perreault v. The Free Lance-Star, No. 071978, 2008 WL 4182425 (Va. Sept. 12, 2008), a group of estate administrators brought a wrongful death suit against pharmaceutical company CAPS (collectively, the settlement parties). The parties proceeded to mediation, reached a confidential settlement agreement, and petitioned the trial court for settlement approval as required by law. Va. Code § 8.01-55 (the settlement statute). The settlement parties submitted redacted versions of the agreements which did not include the financial terms of the settlements.
A group of newspapers sought to intervene, objecting to the entry of the redacted settlement agreements because the documents were public judicial records subject to disclosure under Va. Code § 17.1-208 (the disclosure statute). After hearings on the matter, the Court determined that the settlement parties'petitions must include all terms of the settlement, because they had "failed to meet their burden to establish a compelling reason sufficient to overcome the presumption of openness" regarding such information.
The settlement parties appealed, maintaining that mediation confidentiality laws outweighed any presumption of openness regarding the settlement of wrongful death claims under Virginia law. See Va. Code § 8.01-581.22 (the mediation confidentiality statute).
The settlement parties first argued that the settlement statute did not require the written submission of the financial terms of a settlement agreement reached during mediation. The Court rejected this argument out of hand, noting that the "plain and unambiguous language" of the provision required a "formal written request" be filed with the Court and that it "shall state the compromise, its terms, and the reasons therefor." The Court continued, "[c]ommon sense dictates that the most significant of ‘terms’" in such a settlement "include the monetary provisions."
The settlement parties next argued that this reading of the disclosure requirements did not give proper effect to the mediation confidentiality statute. The Court acknowledged a tension between treating such terms as confidential under the mediation confidentiality statute and as public under the disclosure statute.
The Court relieved this tension by noting that the general nature of the confidentiality statute and the specific nature of the settlement and disclosure statutes, and resolved that the general statute must give way to the specific disclosure requirements, even when the settlement was the product of confidential mediation proceedings.
Finally, the settlement parties argued that the trial court did not impose the proper evidentiary burden on the newspapers of showing that disclosure was necessary. The Court disagreed, noting that the presumption was in favor of openness, and that any burden was to be borne by the party seeking to seal a judicial record. Because the settlement parties had failed to bear that burden by offering only general allusions to potential emotional or financial harm, the Court held that the trial court did not err in requiring disclosure of the settlement agreements.
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