Christopher R. O'Hara is quoted in a news article on his victory before the Massachusetts Appeals Court, which refused to adopt a "fraud exception" to the confidentiality provisions under the Massachusetts mediation confidentiality statute, G.L. c. 233, § 23C, and a written mediation confidentiality agreement signed by all parties and all counsel.
Mr. O'Hara, along with Ian J. Pinta, successfully represented an attorney and a law firm in litigation brought by the party adverse to the law firm’s client. When the adverse party did not receive the settlement funds they had expected to receive from the settlement, the adverse party claimed that representations were made by the lawyer during the mediation and then sued the lawyer and law firm personally for their client’s alleged breach of a settlement agreement.
The Massachusetts Appeals Court affirmed the Superior Court's grant of the motion to dismiss including the trial court’s decision to strike the alleged disputed mediation statement. The trial court and the Appeals Court agreed that the mediation statute and/or written mediation agreement barred the alleged statement, and further ruled that, even if the disputed statement were not stricken, the alleged statement did not amount to actionable fraud as a matter of law.
The Appeals Court recognized that confidentiality in mediation is “paramount” in allowing parties and their attorneys to speak candidly and ultimately bring the case to resolution, Mr. O’Hara told Massachusetts Lawyers Weekly in its Oct. 17, 2016 issue.
A different outcome would have allowed for "Monday morning quarterbacking" of a mediated settlement, something that would have been “unprecedented and unwarranted,” especially by sophisticated parties represented by counsel, he said. The Appeals Court found persuasive that twelve other jurisdictions which had adopted the Uniform Mediation Act considered and rejected a fraud exception to the mediation privilege.
The Appeals Court also granted summary judgment on the claim of conversion confirming that funds that were held in the law firm's client IOLTA account were the property of the law firm’s client and, in the absence of an escrow provision, the client had the right to instruct the law firm and the lawyer where the funds were to be paid.