Mediation Confidentiality: A Tale Of Two Opinions

Facts matter.  Sometimes.  In the world of mediation where confidentiality is the cornerstone of process that is now responsible for the resolution of the vast majority of civil cases, the strange case of Rogers v. Dupree, 340 Ga. App. 811, 799 S.E.2d 1, 11 (2017), cert. granted, cause remanded (Apr. 16, 2018), is demonstrative of both propositions. 

This much publicized litigation arose from the video taping by a housekeeper of a sexual encounter with her wealthy employer, Mr. Rogers (not your neighbor), while on the job in the bedroom of his home.  It was undisputed that the taping was not consented to by Rogers and was planned or executed to some extent with the assistance of the housekeeper’s counsel who were seeking evidence to support the housekeeper’s claim of workplace sexual harassment. 

The litigation that ensued, both civil and criminal, produced a plethora of appellate opinions, the acquittal at a criminal trial of those who participated in the taping and, ultimately, the settlement of the civil litigations that were spawned by the incident.  The appellate decision cited above is the Rogers opinion that should give pause to those who rely on the sanctity of mediation communications.

Facts One – The Majority Opinion.  The early iteration of the Rogers saga at issue appeared in the Court of Appeals to review the trial courts grant and refusal to grant claims asserted by Rogers against his house keeper’s lawyers.  Among the causes of action at issue were a claim based on communications the defendant lawyers had with Roger’s counsel. The Majority noted that two of the defendant lawyers sent a letter to Rogers stating that they represented the housekeeper and putting Rogers on notice of their intent to pursue an EEOC filing and litigation if the parties could not reach an accord to resolve the matter.  That letter included no demand for money.

The majority recited its summary of the subsequent meetings and communications upon which Roger’s suit was founded as follows:

Rogers’s counsel met with [defendants-housekeeper’s lawyers]. . . Rogers and his counsel participated in mediation with [housekeeper and her lawyers], before which the parties signed a non-disclosure agreement. The mediation ended without agreement. The same day, Rogers filed a complaint . . .

  

Rogers, supra, 813–14.

The Defendants moved to dismiss claims that they contended were based on communications which only occurred in settlement correspondence or mediation and that were included in Roger’s complaint which was apparently finalized immediately after the mediation.  Defendants asserted that disclosure and use of those communications violated both the mediation contract (i.e., the “non-disclosure agreement”) and O.C.G.A. § 24-4-408. 

The Majority affirmed the trial court’s denial of that motion with the following analysis of that contract and statute:

With regard to Butters and the Cohen defendants’ contention that the trial court erred in failing to dismiss Rogers’s claims as a result of his alleged breach of the mediation agreement, we agree with the trial court that “[t]his case is not at all about the amount of the mediation demand,” and that “it is the attempt to obtain money, not the amount of money sought that is relevant.” 

Rogers, supra, 820-821. Q.E.D.

Facts Two – The Dissent.  A lengthy dissent in Rogers included a more detailed review of what actually transpired.  The Dissent first noted that the settlement letter specifically stated that it was submitted under FRE 480, a reference to Federal Rule of Evidence 480 upon which O.C.G.A. § 24-4-408 is modeled and which precludes use in evidence of offers of compromise and settlement of the letter quoted at length by the Majority.  After receipt of the letter:

Rogers’ attorney contacted Cohen shortly afterward and . . . sent an email message thanking Cohen for sending a copy of the “demand letter,” indicating he would consult Rogers about pre-suit mediation, and seeking “a pre-mediation demand that is realistic before moving forward.” . . . Cohen sent Rogers’ attorney a letter to follow up on their phone call, again noting that the letter was sent pursuant to FRE 408 for purposes of settlement and compromise. After observing that jury verdict research in sexual harassment cases involving “high net worth individuals” was limited because most were resolved pre-trial, Cohen described and included copies of several multi-million dollar verdicts, apparently to illustrate that Brindle’s demand would be substantial or that Rogers’ exposure was substantial. Those verdicts included one for $95 million, later reduced to $41.3 million, against an Atlanta-based company, and one from Florida for $5,378,863. 

Rogers, supra, 823.

Roger’s counsel therefore solicited a specific pre-mediation demand but Defendants, again in correspondence submitted under FRE 408, only responded by providing information from other cases.  This surely proved frustrating to Roger’s “grateful” counsel who, unknown to [Defendants] had already emailed a seven-page letter to the Fulton County District Attorney (the D.A.) “to follow up on [their] recent conversation concerning [Rogers,] who is the victim of a blackmail/extortion scheme.”  Rogers, supra, 823.

After the exchange of letters, Rogers secret correspondence and meeting with “the D.A.”, the parties engaged in mediation. Prior to commencement of the mediation the parties “signed a contract . . . agreeing to keep the proceedings confidential.”  During the mediation the housekeeper, presumably through her Defendant lawyers, made a $12,000,000 offer of settlement.  As noted, the mediation quickly failed and later that day Rogers filed suit including the allegation:

“that the defendant had ‘threatened to proceed with litigation and reveal [recordings of their sexual encounters] if Plaintiff does not agree to pay her ‘millions’ of dollars.’  Rogers later admitted that the only monetary demand he had received at that time was during the confidential mediation proceeding.”

Rogers, supra, 823. 

The Dissent noted that as the case proceeded against the lawyer defendants Roger’s claims were specifically based on a scheme to commit extortion executed by “sending a demand letter and participating in mediation.”

In sum, the “actual facts” demonstrated that at least some of Roger’s claims which the Majority allowed to proceed were based on a settlement offer made at a mediation and correspondence that included no specific offer but was submitted pursuant to statutory confidentiality.  Citing Byrd v. State, 186 Ga.App. 446, the first reported Georgia decision on mediation confidentiality, the Dissent observed that “[t]he integrity of mediation programs is in jeopardy without confidentiality for the proceedings.”  The Dissent would therefore have found that both the letter proposing mediation and the settlement offer made in mediation were not only inadmissible but could not be the basis for a tort claim.  To the relief of every civil litigant and mediator as potential “aiders and abettors” of extortion, the Dissent was vindicated by a ruling of the Georgia Supreme Court in the Rogers criminal case that the settlement communications referenced above could not be the basis for a charge of criminal extortion.  State v. Cohen, 302 Ga. 616 (2017).

The troubling aspect of the Majority opinion in Rogers is the inattention to the facts relating to communications protected both by statute and Court of Appeals precedent and the lack of analysis related to those communications.  In the Court’s defense, it had a full plate of legal issues to deal with in the Rogers litigations and the problem of protecting the confidentiality of mediation and settlement communications may have seemed insignificant. 

On the other hand, in a system in which over 98% of civil disputes are decided outside of a courtroom, there could hardly be a more important issue than securing the “integrity” of mediation and settlement communications.  Although there are no reported decisions interpreting or enforcing the Uniform Mediation Act adopted after the Rogers decision, O.C.G.A. § 9-17-1 et seq, perhaps that legislation which reinforces and expands the testamentary privilege stated in O.C.G.A. § 24-4-408 and its predecessor, will at least call a Court’s attention to the critical importance of protecting mediation and settlement communications.

As a footnote to the Rogers cavalcade of litigations, it should be observed that the housekeeper’s lawyers prediction of an embarrassing if not humiliating spectacle of a public trial proved accurate.  The defendants were all acquitted in the criminal trial,  the only openly adjudicated matter in the Rogers litigations, where Rogers was subjected to a scathing cross examination of his conduct in several matters that was widely covered in the local press. All of the civil claims were ultimately settled, including Rogers claims against his housekeeper that was resolved after a jury was empaneled in Cobb Superior Court.  Atlanta Journal Constitution, August 6, 2019.  Presumably all of the settlements were confidential.  If the parties had only stayed at the mediation table…