rational means for ascertaining truth." See Jaffee, 518 U.S.
at 9, 116 S.Ct. 1923 (citation and internal quotations omitted);
see also Folb, 16 F. Supp.2d at 1171-79 (holding same).
Nothing in the Plaintiffs' opposition brief demonstrates the
contrary. First, for reasons articulated above, their suggestion
that "[n]o private interest is furthered" by adopting the
privilege is entirely without merit. See discussion supra at
513-14 (addressing first prong of Jaffee regarding need for
trust and confidence); see Pls.' Mem. at 6-8. Under the first
prong in Jaffee, Plaintiffs' counsel apparently attempts to
distinguish the Mediation from the "normal mediation process,"
stating that Local 30 "had no recourse" once mediation did not
result in a settlement. Aside from the obvious fact that the
Plaintiffs have enjoyed the recourse of filing a federal
lawsuit, Counsel provides no legal authority for the proposition
that Local 30's potential rights are in any way relevant to the
Nor can the Plaintiffs support their suggestion that the
Mediation was "essentially meaningless" because the Commission
was not bound by any findings of the mediator. See Pls.' Mem.
at 7. By definition, mediation is a non-binding dispute
resolution technique through which "a neutral third party . . .
facilitates the resolution of a dispute by assisting parties
in reaching a voluntary agreement." See discussion supra
at 513 (emphasis added). The very nature of this process
mandates a need for confidence and trust so that the parties can
honestly and openly discuss the strengths and weaknesses of
their positions in an attempt to reach a voluntarily settlement.
The Plaintiffs' "private interest" arguments are of no avail.
So too are their arguments regarding "public interest." See
Pls.' Mem. at 8-9. Under this prong, the Plaintiffs merely
reiterate their claim that the mediation process here was
meaningless and they state that the privilege "would only give
the [Commission] a license to lie and encourage disingenuity."
See id. The Plaintiffs' sentiments notwithstanding, Congress,
the legislatures of nearly every state, and this and other
District Courts have recognized the valuable role that mediation
plays in our judicial system. See discussion supra at
513-14. Additionally, this Court fails to see how an adoption of
the mediation privilege creates a license for litigants to lie
or to be disingenuous. To the contrary, the privilege fosters
mediation participants' candor and honesty regarding the
validity of their positions by alleviating their "fear[s that]
an unsuccessful mediation attempt will come back to haunt them
in a court of law." See discussion supra at 514, n. 3.
Regarding the third prong in Jaffee, the Plaintiffs suggest
that the Commission's purported admission "would have been
spoken with or without a privilege because" the Defendant agreed
to participate in the Mediation. See Pls.' Mem. at 9. This
argument turn's the reasoning in Jaffee on its head. The
Jaffee Court concluded that, if the privilege at issue there
"were rejected, confidential conversations . . . would surely
be chilled," thereby making it unlikely for "admissions against
interest by a party" like the purported one here "to come into
being." See id., 518 U.S. at 11-12, 116 S.Ct. 1923. This is
the appropriate analysis, and it demonstrates precisely why the
Plaintiffs should not be afforded the benefit of the purported
Regarding the fourth prong in Jaffee, the Plaintiffs'
arguments simply cannot explain away the nearly unanimous voices
of state legislatures from across the country adopting mediation
privileges. See discussion supra at 514-15 (addressing
frustration of parallel states' privilege).
The only other argument the Plaintiffs present in opposing an
application of the mediation privilege is their contention that
the Commission "waived the privilege by putting" mediation
communications and documents "at issue" in this case. See
Pl.'s Mem. at 10-11. A review of the record, however, reveals
the contrary. The mediation issue arose only after Mr. Haas and
an agent of Local 30 referenced it in their depositions. See
Pls.' Mem. at 2-3 (quoting Dep. Test. of R. Haas); id. at 11
(referencing Dep. Test. of A. Lombardozzi, agent for Local
30). The Plaintiffs have not and cannot support their assertion
that discussions in depositions of the Mediation by them or
agents of Local 30 somehow effectuated a waiver of the privilege
on behalf of the Commission.*fn4
Having concluded that the federal mediation privilege will be
adopted and applied in this case the Court must, to the extent
possible, define the contours of the privilege. Cf. generally
Folb, 16 F. Supp.2d at 1180 (noting same). Because this
District's Local Rule 16.3 addresses standards regarding the
appropriate scope of confidentiality in the mediation process
(albeit, within the context of court-annexed mediation), the
Court concludes that the Rule is an appropriate starting point
for defining the privilege. Accordingly, the mediation privilege
recognized herein shall comport with the following standards:
• The privilege protects from disclosure "all
written and oral communications made in connection
with or during" a mediation conducted before a
"neutral" mediator. See W. Dist. Local R.
• No such written or oral communication may be "used
for any purpose (including impeachment) in the civil
action or in any other proceedings." See id., R.
• "Except for a written settlement agreement or any
written stipulations executed by the parties or
their counsel, no party or counsel shall be bound by
anything done or said" during the mediation process.
In addition, this Court has already concluded that the most
compelling reason for recognizing the mediation privilege is the
Plaintiffs' lack of entitlement to any admission of the
Defendant that, but for the mediation process, would not have
come into being. See discussion supra at 515 (citing and
quoting Jaffee, 518 U.S. at 1112, 116 S.Ct. 1923). If the
Plaintiff is able to elicit any admissions (or facts underlying
them) outside the scope of the mediation process, however, the
rationale for the privilege would no longer apply. Accordingly,
this Court concludes and therefore holds that the mediation
privilege does not protect from disclosure "any evidence
otherwise" and independently "discoverable merely because it
[wa]s presented in the course of" the Mediation. See generally
Fed.R.Evid. 408; see also discussion supra at 515.
Accordingly, the Plaintiffs remain free to conduct discovery
independent of, and unrelated to, the mediation process.