Federal Court Positively Adopts a Federal Common Law Testimonial Privilege for Mediation: Is It Justified - Folb v. Motion Picture Industry Pension & (and) Health Plans

Mediation is a popular means of alternative dispute resolution that has proliferated in recent years. Virtually every state has adopted some form of testimonial privilege to protect the confidentiality of private parties participating in mediation. The federal courts, however, have never adopted a mediation privilege protecting the confidentiality of mediation between private parties in federal court. Federal courts have relied on other evidentiary, procedural and contractual protections to ensure that communications articulated during mediation will not be used for purposes outside mediation proceedings.

Finding these protections inadequate to insulate parties in private mediation proceedings from third party discovery, the United States District Court for the District of California affirmatively adopted, for the first time in federal court, a federal common law mediation privilege. This Casenote considers the adequacy of the justification provided by the court in adopting the mediation privilege under the federal common law, and whether, in light of countervailing public policy, the scope of the mediation privilege adopted is over broad.