United States District Court, D. Massachusetts
MEMORANDUM & ORDER
Nathaniel M. Gorton United States District Judge.
suit arises from a dispute as to the validity of an
arbitration award. While Spruce Environmental Technologies,
Inc. (“Spruce” or “plaintiff”) moves
to confirm the award, Festa Radon Technologies, Co.
(“Festa” or “defendant”) moves to
vacate it on grounds that 1) the arbitration was improperly
conducted and 2) the award was not justified.
parties to this suit have engaged in protracted litigation
over crossclaims that 1) Festa perpetuated a false
advertisement campaign about Spruce and its products and 2)
Spruce engaged in commercial disparagement pursuant to the
Lanham Act, 15 U.S.C. § 1125(a), and M.G.L. c. 93A. In
October, 2015, the parties agreed to mediation before retired
Massachusetts Superior Court Judge Nancy Holtz (“Judge
Holtz” or “the arbitrator”) of Judicial
Arbitration and Mediation Services, Inc.
to mediate were unsuccessful and the parties entered into an
Arbitration Agreement in April, 2017. That agreement
specifically named Judge Holtz, who had attempted to mediate
the dispute, as the arbitrator. In May, 2017, eight months
before the arbitration commenced, the parties entered into a
stipulation, which among other things, required counsel to
affirm that upon informed consent, the parties agreed to the
mediation-arbitration (“med-arb”) process whereby
the mediator (Judge Holtz) was authorized to serve as the
Holtz conducted a four-day arbitration hearing during January
and February of 2018, without objection from counsel as to
any of the med-arb proceedings. Shortly after the end of the
hearing, Judge Holtz issued an Interim Award which found for
Spruce on all federal and state claims and counterclaims.
Following the Interim Award, Judge Holtz allowed the parties
to submit supplemental briefing in light of her finding that
Spruce was entitled to attorneys' fees and costs under
the Lanham Act. She then issued a Final Award with respect to
fees and costs.
moved for this Court to confirm the Final Award. Festa did
not oppose that motion but, instead, filed a motion to vacate
the award. Those conflicting motions are pending.
Valid Arbitration Agreement
argues that the stipulation entered into by the parties
violates Massachusetts public policy because of the
Commonwealth's applicable mediation privilege statute,
M.G.L. c. 233, § 23C. That argument presumes that the
mediation privilege represents a general policy concern that
cannot be waived. Beacon Hill Civic Ass'n v.
Ristorante Toscano, Inc., 662 N.E.2d 1015, 1018-19
(Mass. 1996) (finding that certain general policy concerns
protected by the legislature are not waivable).
Court does not doubt Festa's contention that the
mediation privilege embodies important policies of
confidentiality and neutrality but none of its cited cases
supports its claim that the mediation privilege, as codified
by § 23C, represents a non-waivable right. Cf. Leary
v. Geoghan, No. 2002-J-0435, 2002 WL 32140255, at *3
(Mass. App. Ct. Aug. 5, 2002) (precluding the mediator from
testifying about the mediation even with party consent
because it conflicts with the “plain intent” of
the statute to preserve neutrality); Town of Clinton v.
Geological Servs. Corp., No. 04-0462A, 2006 WL 3246464,
at *3 (Mass. Super. Nov. 8, 2006) (denying the production of
mediation documents in a valid med-arb proceeding).
fact, some Massachusetts courts have suggested that the
privilege is waivable. See Bobick v. United States Fid.
& Guar., Co., 790 N.E.2d 653, 658 n.11 (Mass. 2003)
(noting that the party “implicitly” waived the
mediation privilege under § 23C by accusing the
defendant of failing to make a reasonable settlement offer);
ZVI Const. Co., LLC v. Levy, 60 N.E.3d 368, 375
(Mass. App. Ct. 2016) (rejecting a fraud exception to the
mediation privilege on the grounds that counsel specifically
negotiated a confidentiality agreement that was broader than
the Massachusetts mediation statute). Given the paucity of
case law on this issue, Festa's claim that § 23C
confers a non-waivable “absolute privilege” is
the dearth of Massachusetts case law on this issue, this
Court agrees with Spruce that in a case arising out of a
federal question, as alleged here, federal common law
controls the existence and application of evidentiary
privilege. Fed.R.Evid. 501; In re Admin. Subpoena Blue
Cross Blue Shield of Massachusetts, Inc., 400 F.Supp.2d
386, 391 (D. Mass. 2005). Recently, another session of this
Court and several district courts elsewhere have recognized
the federal mediation privilege, consistent with the holding
of the Supreme Court in Jaffree v. Redmond, 518 U.S.
1 (1996). See ACQIS, LLC v. EMC Corp., 2017 U.S.