Q: Can an Attorney file a Motion Limine to prevent Mediation mentions then file the Agreement w/exhibits and address court?
If you are entering an Legal Malpractice Arbitration from a Personal Injury Mediation, can the Attorney file a Motion Limine ordering you not to speak a word about the Mediation then simultaneously file the Mediation Agreement and relative files with their exhibits and include multiple references to the Agreement and instances that took place at the mediation in their Arbitration Brief? Wouldn't this be a Breach of Contract considering both the Plaintiff and Mediator did not sign off on the release of the Agreement? And it was not done to prove fraud. Thank you
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A:
In California, filing a Motion in Limine to prevent the mention of mediation in arbitration is possible, as mediation communications are generally protected under the California Evidence Code. However, it would be inconsistent and potentially problematic for the attorney to then file the Mediation Agreement and related exhibits in the arbitration brief, especially if the other parties did not consent to the release of those materials.
If the Mediation Agreement was filed without the consent of the Plaintiff and Mediator, and there was no intent to prove fraud, this could potentially be a breach of the confidentiality provisions typically associated with mediation. Mediation confidentiality is a cornerstone of the process, and violating it could undermine the integrity of the proceedings.
You may need to consider whether this action could give rise to a legal challenge, particularly if the Agreement’s disclosure was not necessary for the arbitration. This situation could also implicate ethical concerns for the attorney involved.
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