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The Superior Court of Massachusetts has held that evidence protected by the State's mediation confidentiality statute does not lose its protected status in subsequent judicial proceedings, even if the mediation ends and is followed by an arbitration process involving the same parties.
In Town of Clinton v. Geological Services Corp., No. 04-0462A, 2006 WL 3246464 (Mass. Super. Nov. 8, 2006), defendant Garrett Engineering P.C. (Garrett) sought documents which had been produced as part of a failed mediation proceeding between General Contractor Methuen Construction Co. (Methuen) and the Town of Clinton (the Town), pursuant to a post-dispute med-arb agreement. When mediation attempts failed, the Town and Methuen proceeded to arbitration, which resulted in Methuen being awarded $1.2 million for delay and extra work in fulfilling the terms of a construction contract with the Town.
The Town then brought suit against Geological Services Corp–and co-defendant Garrett–to recover the money awarded to Methuen. When Garret sought to compel the Town to produce documents presented in mediation, the Town refused, arguing that Mass. Gen. Law ch. 233 §23C provides a statutory privilege for all communications and submissions made during mediation. Garrett argued that the requested documents were "related" to the subsequent arbitration, and that any statutory privilege had thus been waived.
The Court agreed with the Town, and upheld the statutory privilege. One Massachusetts case noted that the statute at issue "confers blanket confidentiality protection on the mediation process, including an explicit prohibition on disclosure in judicial proceedings, without listing any exceptions." Leary v. Geoghan, 2002 WL 32140255 (Mass. Super. 2002). Confidentiality is critical to the mediation process because parties will often refuse to "open up" if they believe that open discussion might harm their position in subsequent proceedings.
Here, the statutory privilege served an important public interest of allowing parties to mediate with complete candor. Garrett cited no authority supporting its argument that the Town of Clinton had waived this privilege merely by participating in arbitration.
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