According to the Appeals Court, it is unequivocally mean for an ex-husband to tell an ex-wife that her son wished she would die.  A judgment (incorporating an agreement) prohibited interparty communications that were “negative or mean.”  The Probate and Family Court found the ex-husband in contempt for sending a letter alleging that his ex-wife suffered from a “mental illness” and claiming that her son “wished [her] to die.”  The ex-husband appealed, presumably on the grounds that his action did not rise to a “clear and undoubted disobedience” of the judgment.  After all, what does “mean” mean anyway?  Distinguishing the “mean” prohibition here from the “customary nondisparagement provision,” the Appeals Court affirmed, concluding that the ex-husband’s language was so clearly “mean” and “well outside the range of possible ambiguity,” that a contempt finding was appropriate.  The lesson for mediators may be that the nondisparagement provisions the Appeals Court sought to distinguish here may not be as unenforceable as we might think.  Fawzi v. Elaskalani, 2010 Mass. App. Unpub. LEXIS 602 (June 4, 2010) (Unpublished).

The basis of the malpractice claim in DiPietro is also instructive for mediators. The client alleged that the attorney negligently failed to advise him on the difference between “merger” and “survival” as they relate to the subsequent modification of the agreement. Note, too, the client’s statements during the judge’s colloquy that he understood the agreement and was satisfied with the advice of counsel do not preclude a malpractice action. If there’s a lesson in here — perhaps it is that mediators should ask clients to sign a document confirming their understanding of these terms. DiPietro v. Erickson, 2010 WL 1178410 (Mass.Super.) (March 16, 2010). (more…)

A recent Superior Court case held that a divorce lawyer who was sued for malpractice by a client could depose the successor counsel who represented that client in a modification action. That the client waives attorney-client privilege when malpractice is asserted is black-letter law. Here, the court extended that waiver to the successor counsel hired to fix the problems that the original lawyer had allegedly failed to address. The case should, at the very least, remind mediators that our confidentiality statute isn’t bulletproof — in the event of a malpractice claim, the statute will not protect mediation communications from disclosure. See, e.g. Bobick v. United States Fid. & Guar. Co., 439 Mass. 625, 658 n.11 (2003). DiPietro v. Erickson, 2010 WL 1178410 (Mass.Super.) (March 16, 2010).