ADR Gone Wild: Is it Time for a Federal Mediation Exclusionary Rule?

Abstract

Most people have heard of the video series “Girls Gone Wild.” What remains largely unknown however, is that Joe Francis, America’s best known and most flamboyant purveyor of adult videos, went to jail for his conduct at a court-ordered mediation regarding the Girls Gone Wild videos. This scenario provides a colorful foundation for discussion of an increasingly acute problem in our courts: the erosion of confidentiality in federal, court-ordered mediation. This article examines this question in the context of mediation sanctions motions, a trend tracing back to the passage of the ADR Act in 1998. Filling a gap in current scholarship, the article includes a complete survey of the relevant mediation rules of all U.S. district courts, underscoring the lack of consistency that has lead to the erosion of confidentiality in most federal courts. The article reviews the inevitable consequence of this lack of mediation confidentiality: a growing rash of sanctions motions filed by parties unhappy with the outcome of a mediation, often providing detailed accounts of what transpired during the supposedly confidential negotiations. After analyzing the policy rationales behind mediation confidentiality, the article argues that Federal Rule of Civil Procedure 16 should be amended to prohibit the disclosure of mediation communications in support of motions seeking sanctions for purported violations of the rule.