In his blog post for Nutter McClennen & Fish, John G. Loughnane writes that the Massachusetts Appeals Court recently refused to override the terms of a mediated agreement. According to Loughnane, the opinion is noteworthy because it confirms mediation confidentiality and encourages parties dealing with distressed situations to have a careful strategy, including a strategy for agreements that are reached in mediation.
The court notes that the statute:
"gives broad confidentiality protection to mediation communications, barring disclosure in any judicial or administrative proceeding, and creating only one express exception for the mediation of labor disputes. Significantly, the statute does not include an exception for fraud. In light of that omission, we would be hard pressed to find that such an exception exists in the circumstances of this case, where there is a confidentiality agreement, negotiated between sophisticated business people with the assistance of legal counsel, that is even broader than § 23C. Indeed, were there to be a fraud exception to the parties' mediation confidentiality agreement when no such exception exists under the confidentiality provisions of § 23C, it could lead to the incongruous situation where two identical claims of fraud at mediation are alleged, but only one can go forward because the mediator was not within earshot at the moment when one of the communications was uttered."
The opinion is ZVI Construction Co. v. Levy, et al., (90 Mass. App. Ct. 412, 2016) located here.
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