Confidential Divorce Mediation in Arizona

Family law issues in a divorce can be emotional and divisive. Compromise talks are difficult since each party is afraid of revealing things that might be used against them.

In Arizona, spouses can hash out thorny issues with a neutral third party in a process called mediation. To give parties free reign to work things out, Arizona law makes everything that happens in a mediation confidential under the mediation privilege.

In the case of Grubaugh vs. Hon. Blomo, 1-CA-SA 15-0012, filed September 22, 2015, the Arizona Court of Appeals looked at what happens to the mediation privilege when a party to mediation files a malpractice claim.

Karen Grubaugh claimed that she signed off on a bad marital-property division after a divorce mediation because of the faulty advice of her attorney. The lower court ruled that Karen waived the mediation privilege by bringing the malpractice case, and that the Attorney could use their communications with her to defend themselves.

The Court of Appeals reversed. It ruled that any communications that happened between Karen and the attorneys could not be discussed in the malpractice action because the privilege had not been waived. However, the Court ordered the superior court to dismiss any of Karen’s malpractice claims that involved those communications.


Confidential Mediations in Arizona | The Clear Language of the Statute Controls

The Court of Appeals first looked at the language of the law. The mediation confidentiality law states that no communications made in mediation, or to prepare for it, can be used in any other court case. The law lists four specific exceptions to this rule.

Attorney-client communications are not one of the exceptions, the Court noted. The legislature could have excepted attorney-client communications from the confidentiality provisions to allow a client to bring a malpractice action, but it did not do so. When a law is clear, the court cannot give it a different interpretation unless it leads to an “absurd result.”

The Court said that sound policy supported this interpretation of the law. Since everyone present during the mediation – both spouses, their attorneys and the mediator – have the right to confidentiality under the privilege, it doesn’t make sense to allow one spouse to waive it by suing her attorney.


A Party Cannot Bring Claims Relating to Mediation Communications

The decision that Karen did not waive the privilege means that the Attorneys could not use evidence of what they told her to defend against the malpractice claims. The Court next looked at those claims. It ruled that a party cannot bring claims about privileged communications if the privilege prevents the other parties from defending against the claims. It directed the superior court to strike any of Karen’s malpractice claims that were founded on communications about or during mediation.

The take away from this case is that neither of the parties, nor their attorneys, may use any statements made in mediation unless both parties agree to waive the confidentiality of some or all of those statements. This ruling ensures people attending divorce mediation in Arizona can participate openly to try to settle their case without fearing something they say may be used against them at trial.