Oregon Supreme Court on Mediation Confidentiality
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On December 10, 2015, the Oregon Supreme Court released an opinion in a case that required it, for the first time, to consider whether a client may assert a claim for legal malpractice relying upon factual allegations that reveal the substance of communications made in the course of, or immediately after, a mediation process. Though relying upon Oregon law, the analysis is extraordinarily reasoned and yields an outcome that is more nuanced and (perhaps) more useful generally that the series of opinions that the California courts have offered on the subject.
Alfieri v. Solomon arises from an underlying claim that Mr. Alfieri brought against his former employer, alleging discrimination and retaliation. His lawyer, Mr. Solomon, filed administrative and civil claims on Mr. Alfieri’s behalf and represented him in mediation in respect of those claims. (It is unclear whether the mediation was court-referred or by voluntary stipulation.) The mediation culminated in a recommendation by the mediator which the parties eventually accepted, and the discrimination claims were settled by written agreement.
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