MEDIATION CONFIDENTIALITY: A FEDERAL COURT OXYMORON
MEDIATION CONFIDENTIALITY: A FEDERAL COURT OXYMORON
By: Phyllis G. Pollack | www.pgpmediation.com
Despite the alleged existence of a federal common law mediation privilege, statutory mediation confidentiality rules and the actual existence of individual Court’s local mediation confidentiality rules, federal courts to date have so limited the scope of mediation confidentiality that one might as well call federal mediation confidentiality an oxymoron.
BABASA v. LENSCRAFTERS
A good starting point for any analysis of the federal mediation confidentiality rule is the Ninth Circuit’s opinion in Babasa v. LensCrafters, Inc., 498 F. 3d 972 (9th Cir. 2007) (“Babasa“). Although the Babasa Court focused on whether it had removal jurisdiction under 28 U.S.C. ยง1446(b), along the way it carved out a huge exception to the principle of mediation confidentiality.
In April 2005, Patrick Babasa and others filed a putative class action in state court against LensCrafters, Inc. alleging various California Labor Code violations. After the plaintiffs filed an amended complaint, the parties agreed to mediate.
