The Michigan Supreme Court upheld the confidentiality of mediation in a case decided last year, Tyler v Findling. The facts were somewhat unusual; the statement in question was made by one attorney (Mr. Findling) to another attorney, outside the presence of the mediator or the other mediation participants, and it did not concern the substance of the mediation, but rather the competence of another attorney. The attorney whose reputation was questioned, Mr. Tyler, sued for defamation, and the defendant claimed mediation confidentiality to protect his statement. The trial court agreed that MCR 2.412, regarding mediation confidentiality, protected the allegedly defamatory statement; the Court of Appeals reversed, determining, among other things, that Mr. Findling was not a party to the mediation. The Supreme Court interpreted MCR 2.412 broadly to cover this situation as well.

My colleague Lee Hornberger has written an excellent detailed summary of this case as well as of the state of mediation confidentiality in Michigan. It was published recently in the Oakland County Legal News.