Mediation Confidentiality is the Source of Judicial Bewilderment

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Chicago (photo by Grant Swanson)

   By: Donald L. Swanson

“I found the [Mediator’s resignation] letter to be a little bit bewildering.”            

–A. Benjamin Goldgar, Chicago Bankruptcy Judge, September 21, 2016.

Judge Goldgar is, obviously, an excellent jurist with excellent judgment.
But everyone makes mistakes. And Judge Goldgar’s flap with the Caesars mediator over mediation confidentiality is one of those mistakes.

Mediation Confidentiality

Mediation confidentiality is a nearly-sacred precept today. There is a uniformity of belief, worldwide, that mediation effectiveness is dependent upon a cloak of confidentiality and that privacy of mediation information is a supreme value.

Judge Goldgar’s mistake is his failure to recognize this confidentiality precept, both in his initial ruling and in his follow-up “bewildering” explanation.

Mediation is Well-Used

Mediation is a well-used dispute resolution tool, these days, throughout the U.S.and around the world. It is commonly used for resolving conflicts at all levels–from workplace disputes to lawsuit disputes to international disputes.

The entire U.S. judicial system, both state and Federal, has a heavy mediation utilization. The only courts where mediation is yet to fully-take-hold, it seems, are many of the U.S. bankruptcy courts. The Bankruptcy Court in Chicago is today’s most-notable and adamant mediation-holdout.

Follow-Up Explanations

Judge Goldgar’s bewilderment is explained by the total absence, in his explanations, of mediation confidentiality concerns.

Here are his follow-up explanatins–note the absence of any reference to mediation-confidentiality:

–“This was a private mediation.”

–“When the debtor moved to have a mediator appointed, I made it very clear I had no ability to do that.”

–“As I recall, I told you that you’ve always had the ability to mediate, and you could do so or not as you saw fit, but that was not something that I should be getting involved with.”

–“So [I’m] not a supervising court.”

–“They weren’t standard reports. There was no requirement that the mediator ever report to the court in any fashion because, again, this was not a court-supervised mediation. This was purely private. These reports were filed for reasons I can’t explain.”

–“Compare the process with the examiner. The examiner was court-appointed. The examiner made reports to the court because he was ordered to. Nothing required the mediator here to do anything. Nothing from the court in any event.”

[Editorial comment: I understand the Judge’s point on examiner reporting. But an examiner is a bad analogy here because expectations of confidentiality, between an examiner and a mediator, are worlds apart.]

–The injunction motion, not the mediator’s report, “was the focus of my observations.”

–The mediator’s report “didn’t include any details,” so the mediator’s “mere conclusion was not entitled to very much weight.”

A Telling Remark

But the most telling comment from Judge Goldgar in his bewilderment explanation is this:

–“I don’t recall expressing any views on mediation, typical or atypical. As it happens, I have almost no views on mediation.”

Conclusion

Perhaps Judge Goldgar could educate himself on mediation, as a dispute resolution tool, and thereby avoid future mistakes on the subject.

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