Oregon Court of Appeals supports broad protection of "mediation communications"

By Lori Irish Bauman
July 27, 2015

The Oregon Court of Appeals last week reinforced the broad scope of Oregon's law stating that "mediation communications" are inadmissible in subsequent proceedings.

In Yoshida's Inc. v. Dunn Carney Allen Higgins & Tongue, the issue was whether emails related to a mediation could be admitted into evidence in a separate legal malpractice case.  The client in the malpractice case contended that the defendant lawyer had failed to provide a timely notice to terminate an equipment and software lease, resulting in an automatic renewal of the lease.  The client hired a different lawyer to resolve the matter with the lessor, and in a mediation the client agreed to pay a sum of money to terminate the lease and purchase the equipment and software from the lessor.  In the trial of the subsequent malpractice case, the trial court admitted into evidence emails associated with the mediation.  Defendant lawyer contended that the emails showed that the client suffered no damages as a result of the alleged negligence.  A jury entered a verdict in favor of the defendant lawyer.

The Court of Appeals held that it was reversible error to admit the emails.  ORS 36.222 states that "mediation communications" -- meaning all communications make in the course of or in connection with a mediation -- are not admissible in any subsequent proceeding, and on that basis the trial court had erred.

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