Are Mediations Really Confidential?


Benes v. A.B. Data, Ltd., 2013 U.S. App. LEXIS 15270 (7th Cir. Wis. July 26, 2013) 

Are mediations really confidential? 

The facts as set forth in the opinion are that Benes was an employee who sued his employer after only for four months on the job, alleging sex discrimination.  At the EEOC-arranged mediation, the parties caucused after an initial joint session and, upon receiving the settlement proposal, Benes stormed into the room occupied by his employer’s representatives and said loudly: “You can take your proposal and shove it up your ass and fire me and I'll see you in court.” Benes stalked out, and, within an hour, the employer “accepted Benes’s counterproposal: it fired him.”  Benes then proceeded with an anti-retaliation claim and abandoned his sex discrimination claim.  The district court granted summary judgment in favor of the employer, holding that because the employee was fired for misconduct during the mediation, not for making or supporting a charge of discrimination, he had no claim for retaliation. 

The Seventh Circuit affirmed, stating:  “Mediation would be less useful, and serious claims of discrimination therefore would be harder to vindicate, if people could with impunity ignore the structure established by the mediator. Allowing a sanction against a person who by misconduct wrecks a mediation will promote the goals of [42 U.S.C.] §2000e-3(a). Benes has not cited any case holding that misconduct during a mediation must be ignored. Many cases show that misconduct during litigation may be the basis of sanctions (by the court, if not by another litigant).  We cannot see why misconduct during mediation should be consequence free. Judges do not supervise mediation, which makes it all the more important that transgressions be dealt with in some other fashion.” (citations omitted).          

This case should give pause to those of us that tell the litigants that everything is confidential.  See Ellen E. Deason, “Predictable Mediation Confidentiality in the U.S. Federal System,” 17 Ohio St. J. on Disp. Resol. 239 (2002). 

Juan Ramirez Jr. covers cases from federal circuit courts and the U.S. Supreme Court, in addition to opinions out of the Florida appellate courts, on his Civil Dispute Law Update blog.  Coverage has also been extended to ADR cases.