Arizona Appellate Court Rules Mediation Communications Are Not Admissible in Legal Malpractice Case

An Arizona Court of Appeals has ruled that communications made during a mediation session are privileged and may not be used by either party in a legal malpractice case absent a statutory exception.  In Grubaugh v. Blomo, 238 Ariz. 264 (September 22, 2015), a client sued her former attorney for malpractice following a family court case.  In order to defend herself, the lawyer sought to introduce communications made between herself, her client, and a mediator.  In her request, the attorney asserted that her client waived the attorney-client privilege when she filed a legal malpractice claim.

According to an article about the case recently published by the American Bar Association:

Mediation communications are privileged under Arizona Revised Statute Sect. 12-2238(B). The Arizona statute provides that the mediation process is confidential and that the communications made during a mediation are confidential unless all of the parties agree to the disclosure or the communication is relevant to a claim or defense made by a party to the mediation against the mediator or mediation program. Additionally, the statute specifies that a mediator may not be compelled to testify or provide testimony relating to mediation proceedings.

Although a trial court agreed with the lawyer and ordered disclosure of the communications, the Court of Appeals of Arizona, Division One reversed the lower court’s ruling because no statutory exception applied in the case.

The outcome in Grubaugh v. Blomo draws attention to the current split across states regarding the confidentiality of mediation communications in the context of a legal malpractice claim.  You may read more about this jurisdictional split in the ABA’s Litigation News story.

Disputing would like to thank Chuck Herring for alerting us to this interesting mediation ruling.

Photo credit: John Linwood via Foter.com / CC BY-ND