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Pennsylvania class action raises issue of confidentiality, privilege in mediation

Pennsylvania readers may remember the so-called “kids for cash” scandal, which involved judicial kickbacks in the Luzerne County Court of Common Pleas. Between 2000 and 2007, two judges had been accepting bribes from Robert Mericle, the builder of two youth centers, in exchange for contracts with the centers and for making decisions aimed at increasing residents at the facilities. Apparently, the judges took over $2.8 million.

At present, there is a proposed class action in federal court which is connected to the scandal. The proposed class is all the individuals who were illegally incarcerated as juveniles. One interesting aspect of the case is the issue surrounding confidential mediation settlement agreements reached between other defendants and Robert Powell, a co-owner of the juvenile facilities.

Last week, the judge handling the case ruled the lead plaintiffs in the class action will be able to disclose the agreements to the mediator, who will then be able to decide whether those agreements are shown to Powell and his attorney. If the agreements are shown, the judge ruled, no copies of the documents are to be made and the information may only be revealed in the context of mediation, which is confidential.

Confidentiality is, of course, an important aspect of mediation proceedings. Under Pennsylvania law, all mediation communications and documents are privileged, and their disclosure may not be required or compelled in the discovery phase of litigation or in any other process. Neither are they to be admitted as evidence in any action or proceeding.

There are, however, certain exceptions to this rule. We’ll look at these exceptions in our next post.

Source: Pennsylvania Consolidated Statutes, Section 5949

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