Petition for Special Action from the Superior Court in Maricopa County. No. CV 2013-007431. The Honorable James T. Blomo, Judge.
For Petitioner: Sternberg & Singer Ltd., Phoenix, By Melvin Sternberg And Law Office of Paul M. Briggs PLLC, Phoenix, By Paul M. Briggs.
For Real Parties in Interest: Broening Oberg Woods & Wilson PC, Phoenix, By Donald Wilson, Sarah L. Barnes, Kevin R. Meyer.
Presiding Judge John C. Gemmill delivered the opinion of the Court, in which Judge Donn Kessler and Judge Kenton Jones joined.
John C. Gemmill, Judge:
[¶1] Plaintiff/petitioner Karen Grubaugh brought this legal malpractice action against her former attorneys, defendants/real parties in interest Andrea Lawrence and the Hallier Law Firm (collectively " Lawrence" ), seeking damages for allegedly substandard legal advice given to Grubaugh during a family court mediation. Grubaugh challenges the superior court's ruling that the Arizona mediation process privilege created by Arizona Revised Statutes (" A.R.S." ) section 12-2238(B) has been waived or is otherwise inapplicable. We accept special action jurisdiction and grant relief as described herein. Any communications between or among Grubaugh, her attorney, or the mediator, as a part of the mediation process, are privileged under § 12-2238(B). Based on the statute and the record before us, that privilege has not been waived. Because these communications are neither discoverable nor admissible, the superior court is directed to dismiss any claims in the complaint dependent upon such communications.
[¶2] Grubaugh alleges that Lawrence's representation of Grubaugh in marital dissolution proceedings fell below the applicable standard of care. Grubaugh's malpractice
claim is premised, in part, on the distribution of certain business assets. Agreement regarding the method of distribution, and the handling of the tax liability resulting therefrom, was reached during a family court mediation involving Grubaugh, her ex-husband, their attorneys, and the neutral mediator. Before formal discovery began in this matter, Lawrence asked the superior court to order that the A.R.S. § 12-2238(B) mediation privilege was waived as a result of Grubaugh's allegations of malpractice. Lawrence seeks to utilize as evidence communications between herself and Grubaugh, occurring during and after mediation, which led to Grubaugh's ultimate acceptance of the dissolution agreement. In the alternative, Lawrence moved to strike Grubaugh's allegations relating to the mediation if the court held the pertinent communications are protected as confidential.
[¶3] The superior court granted Lawrence's motion in part, concluding the mediation privilege was waived as to all communications, including demonstrative evidence, between the mediator and the parties and between Lawrence and Grubaugh. The court reasoned in part that the privilege was not applicable in this instance because the statute did not contemplate the precise issue presented. The court then ruled that Lawrence's alternative motion to strike was moot.
[¶4] Grubaugh filed this special action challenging the court's order. Because this is a matter involving privilege and imminent disclosure of potentially privileged information, remedy by appeal is inadequate and we therefore accept special action jurisdiction. See Roman Catholic Diocese of Phoenix v. Superior Court ex rel. Cnty. of Maricopa, 204 Ariz. 225, 227, ¶ 2, 62 P.3d 970, 972 (App. 2003); Ariz. Bd. of Med. Exam'rs v. Superior Court, 186 Ariz. 360, 361, 922 P.2d 924, 925 (App. 1996).
ARIZONA'S STATUTORY MEDIATION PROCESS PRIVILEGE
[¶5] Arizona's mediation process privilege is created by A.R.S. section ...