Guess What! Your Online Mediation is Not Confidential

Level: Advanced
Runtime: 64 minutes
Recorded Date: December 15, 2020
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  • Understand how conflict-of-laws principles apply to mediation privilege and confidentiality issues
  • Understand how “mediation confidentiality agreements” create malpractice risks for lawyers and mediators in light of those conflict-of-laws principles
  • Understand how “prospective waivers of liability” affect mediations, and why lawyers should consider striking such provisions from so-called “mediation confidentiality agreements.”
Runtime: 1 hour, 4 minutes
Recorded: December 15, 2020


Lawyers face malpractice and ethical risks when they have clients sign so-called "Mediation Confidentiality Agreements." That's because conflicts-of-law principles allow courts to disregard the privilege statutes of other states as well as confidentiality agreements, and order clients to testify to what happened at mediation. Some courts have already done so, and more will follow, particularly because, in online mediations with participants sprinkled across the country, it is harder to determine which state's privilege statute applies in the first place. You do not want to be the lawyer who has a court order your client to testify to what happened at a mediation after you promised them it would never happen. Learn how to gauge and manage your risks, and how to advise your clients on just how candid they should -- and should not -- be in mediation.

This program was recorded on December 15th, 2020.

Provided By

American Bar Association


Joanna L. Young

Kennedys Law, LLP

Joanna is a Partner in the New York office where she maintains a nationwide practice and actively provides comprehensive legal advice to US and London market insurers. Joanna litigates insurance coverage issues related to high-exposure personal injury, mass tort, premises liability, property damage (first and third-party coverage), professional liability, directors’ & officers’, public liability, bad faith, rescission, and breach of contract and fiduciary duty claims in state and federal courts. She has extensive experience analyzing and litigating the nuances of New York’s Insurance Law and Labor Law.

In 2017, Joanna spent six months on secondment in London with a Lloyd’s syndicate enhancing her knowledge of the London market and providing US legal advice regarding a variety of issues to claims and underwriting groups for all lines of business, as well as operations.

Since 2005, Joanna has been the co-chair of the Diversity Committee, and a member of the Insurance Coverage Committee, for the Torts, Insurance and Compensation Law (TICL) Section of the New York State Bar Association.

Sari W. Montgomery

Robinson Stewart Montgomery & Doppke LLC

Sari W. Montgomery has devoted her career to the law of lawyering, legal ethics and professional responsibility for more than twenty-five years.

After more than a decade as Litigation and Senior Litigation Counsel at the Illinois Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois (ARDC), where she conducted hundreds of investigations and prosecuted dozens of cases before the ARDC Hearing Board, Sari decided to apply her extensive knowledge of the ARDC and legal ethics to helping lawyers who may be facing disciplinary proceedings or who need guidance on ethics matters. Since 2010, she has successfully represented lawyers at every stage of the disciplinary process from investigation and hearing, to appeals before the ARDC Review Board and the Illinois Supreme Court. Sari also represents judges in JIB proceedings, and bar applicants in navigating Character and Fitness proceedings .

In addition to defending lawyers, judges, and bar applicants in disciplinary and bar admissions proceedings, Sari provides preventative consulting services and legal advice to lawyers regarding all manner of ethical and practice management issues. She has issued opinion letters on behalf of lawyers, law firms, government agencies, and law-related businesses to assist in clarifying their ethical obligations and to ensure their business models and procedures are consistent with the Rules of Professional Conduct. Sari also serves as an expert witness in legal malpractice and fee matters.

Sari is a leader in local, state and national bar associations and frequently presents at national, state, and local CLE programs. She has taught as an Adjunct Professor at Loyola University Chicago School of Law, and is a faculty member of the Practising Law Institute (PLI) and the National Academy of Continuing Legal Education (NACLE).

James J.S. Holmes

Clyde & Co. US LLP

James (Jim) Holmes is an experienced trial attorney and litigator, representing major media and entertainment entities, as well as major insurance carriers insuring media and entertainment entities. He defends clients in a variety of intellectual property matters, including trademark, trade dress, trade secrets and copyright infringement, misrepresentation of likeness, unfair competition and breach of contract actions.

Jim regularly works with clients on the defense of claims brought against their marketing practices, including advertising (broadcast and print media), and internet marketing (websites and social media). He also advises clients on cyber liability issues, including the implications and coverage for data and privacy breaches.

Jim is very involved in the legal community and is a current member of the American Bar Association's Board of Governors. He has received numerous recognitions for his service, including the 2016 Benjamin Aranda Outstanding Public Service Award from the Los Angeles County Bar Association. Jim was also awarded the Access Award for pro bono service from the Los Angeles County Board of Supervisors, Los Angeles County Commission on Disabilities, and he received commendation for his work as a temporary judge for Los Angeles Superior Court. He received the 2010-2011 Public Service Honor Roll Award from the American Bar Association, Tort Trial & Insurance Practice Section (TIPS), and Law in Public Service Committee (LIPS). Jim was selected to the California Super Lawyers list as well as Best Lawyers in America for Media Law. He is AV Preeminent® certified by the Martindale-Hubbell peer review rating system.

Jim is known for his legal victories and positive attitude. While he effectively fights for his clients, he makes it a point to always maintain a spirit of civility and humor. In addition to legal honors, Jim has received awards for his exceptional commitment to community and public service work. He uses his considerable talents and skills to benefit individuals from all walks of life through his pro bono activities. Jim is a long-time and fearless advocate for diversity and LGBT rights. He received the first ever Chambers Lifetime Achievement Award for LGBT and Equality, and has served in numerous prominent bar and civic leadership roles. Whether in the courtroom or in the community, Jim is a winning emissary for those he represents.

Jeff Kichaven

Jeff Kichaven, A Professional Corporation

Jeff Kichaven is an Honors Graduate of the Harvard Law School (J.D. cum laude, 1980), a Phi Beta Kappa Graduate of the University of California, Berkeley (A.B., Economics, 1977), and a veteran with 15 years business litigation experience as a partner in Los Angeles firm of Alschuler, Grossman & Pines.

Jeff Kichaven is an internationally recognized speaker and writer on mediation. He is a leading voice on the ways lawyers and mediators can, and must, work together to serve clients better. He has addressed audiences of lawyers in the United States, Canada, and England for six Sections of the American Bar Association (Business Law, Dispute Resolution, Family Law, Law Practice Management, Litigation and Tort, Trial and Insurance Practice). He has also addressed the Practicing Law Institute, ALI-ABA, the State Bar of California, the Texas Association of Mediators, the North Carolina Bar Association, the Wisconsin Association of Mediators, the California Center for Judicial Education and Research ("Judges' College"), the USC Insurance Law Institute, California Continuing Education of the Bar, the Los Angeles County and Beverly Hills Bar Associations, the national seminar series of the Negotiation Strategy Institute and many other organizations.

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