One of the most important aspects if not THE most important aspect about mediations is that they are confidential. What is said by the parties and/or mediator during a mediation stays there. This is absolutely necessary to encourage forthright disclosure, build trust and rapport among the parties, trust in the mediator and her impartiality, preserve the integrity of the process, preserve the parties’ faith in the process, or, in essence, to permit candor, privacy, mediator neutrality and fairness.

Thus, I read with surprise an article in various legal blogs about an employment discrimination case in federal court in the Southern District of Texas in which an attorney sought sanctions against the defense attorney for the latter’s behavior during a mediation.

In Alclair White vs Chevron Phillips Chemical Company, LP, Case No. 4:19-cv-00187 (S. D. Tex.), plaintiff sought sanctions against defendant and its attorney, Dennis Duffy for the latter’s alleged use of profanity-laced conversation which morphed into discriminatory slurs against Plaintiff’s counsel, Alfonso Kennard. The motion for sanctions alleges that during the mediation, Mr. Duffy abusive comments and gestures included, among other things;

• Mr. Duffy shaking his behind in front of Plaintiff’s counsel.
• Mr. Duffy asking Plaintiff’s counsel “do you want to fuck me.”
• Mr. Duffy making inappropriate remarks regarding Plaintiff counsel’s hairstyle. Mr. Duffy stated, “Do you want to fuck me? You have a ponytail haircut, I figured you wanted to fuck me…” (Id. at doc. 26, p.2)

Notably, this behavior allegedly was NOT brought on by anything that plaintiff’s counsel said or did. Rather, plaintiff’s counsel allegedly was polite and professional throughout the course of the mediation. (Id.) As a result of such alleged abusive behavior, Plaintiff’s counsel, questioning Mr. Duffy’s professionalism, wanted nothing more to do with Mr. Duffy especially in light of upcoming depositions. (Id. at page 2.)

Citing the inherent powers of the court to control its processes and the attorneys appearing before it, Plaintiff requested an award of $7,000.00 in sanctions. (Id. at page 3.)

Soon after the motion for sanctions was filed, Mr. Duffy filed a motion to withdraw as counsel for defendant (Id. at Document No. 30) which the court granted. (Id. at Document No. 32.)

Nevertheless, the defendant submitted an opposition noting that (1) Mr. Duffy had withdrawn as counsel of record and so the matter was moot; (2) the alleged statements constitute inadmissible evidence as they occurred during a mediation and under the Texas Civil Practice and Remedies Code Section 154.073(a) as well as the Court’s Local Rule 16.4.1, were subject to mediation confidentiality; thus, the court would have to make its decision based on incompetent evidence if it decided the merits of Plaintiff’s motion; and (3) the monetary sanction is unnecessary as it would be better to simply put this “unfortunate episode in the rearview mirror.” (Id. at Document at 30 at p.3).

To assist it in deciding what to do, the Court reviewed the declarations under seal of not only counsel but of the mediator as well. (I thought mediators were incompetent to testify? and so much for the mediator’s impartiality!)

In the end, the Chief Judge of the district, the Honorable Lee Rosenthal, United States District Judge denied the motion for sanctions. Initially she noted that:

One of the sentences a judge does not imagine—much less welcome—writing includes the words “butt shaking” in describing a lawyer’s alleged actions at a mediation. Sadly, those words fit here.   (Id. at Document 42 at page 1)

She concluded that while it was not clear what happened (there was “significant disagreement about what occurred”) (Id. at page  2.) it was clear that neither counsel exemplified professional conduct:

No further or formal sanction is necessary at this point. Duffy has had to withdraw. Before he did so, he received national press coverage when the sanctions motion “went viral.” Duffy’s professional reputation, and the closely related ability to attract new business, will no doubt suffer, and they should. (Id. at page 3)

Of note, the Court makes no mention of mediation confidentiality,  the inadmissibility of the alleged statements made or the incompetency of the mediator to testify and how doing so impinges upon his neutrality and impartiality.  The court  thus missed a great and wonderful opportunity to emphasize the importance of confidentiality (and mediation in general), and how necessary it is to promote candor, fairness, privacy, the integrity of the process, and most importantly, to preserve the parties’ faith in the process. (Just imagine how the plaintiff probably felt after reading all over the world wide web about what occurred during her mediation! And what do you think she thinks about the “neutral” mediator who testified?) While I do admit my bias, I still think the Court should have given a plug for mediation and its confidentiality!

… Just something to think about.

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