The Second District rejects a non-statutory exception to mediation privilege for attorney-client communications made in mediation.
John Amis sued Greenberg Traurig, LLP for malpractice after he signed a settlement agreement that converted his company’s corporate liabilities into his personal liabilities. The agreement was reached in mediation over a breach of contract dispute and required Amis, his company, and its shareholders be jointly and severally liable for the settlement payment. The company defaulted on its payment obligation, forcing Amis to declare bankruptcy to avoid personal liability. Amis alleged the firm failed to advise him of the consequences of executing the agreement.
The Second District affirmed the trial court’s grant of summary judgment premised on mediation confidentiality. The Supreme Court has broadly applied mediation-confidentiality statutes. A body of case law rejects Amis’ argument that the mediation confidentiality statutes do not extend to communications between a mediation participant and his or her own attorneys outside the presence of other participants in the mediation.
Even without direct evidence of what was discussed at the mediation, the trial court should have presumed the law firm properly advised Amis about the consequences of the agreement. A contrary inference would permit Amis to accomplice indirectly what the statutes directly prohibit, and be fundamentally at odds with the mediation confidentiality statutes’ directives.
Comment: This decision further cements the mediation-confidentiality statutes’ importance in defending malpractice cases alleging negligent settlement advice at mediation.