A Final Step to Uphold Mediation Confidentiality in Federal Courts

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Completing the steps

By: Donald L. Swanson

 

(d) Confidentiality Provisions.— Until such time as rules are adopted under [28 U.S.C. §§ 2071 et seq.] providing for the confidentiality of alternative dispute resolution processes . . . , each district court shall, by local rule adopted under section 2071(a), provide for the confidentiality of . . . dispute resolution communications.”

–Alternative Dispute Resolution Act of 1998 (28 U.S.C. § 652(d)).

Here’s what this 1998 statute is requiring:

  1. First, each district court is directed to adopt a local rule on mediation confidentiality, under 28 U.S.C. § 2071(a), as a first-and-interim step in a two-step process; and
  2. Then, a Federal rule needs to be adopted on mediation confidentiality, under 28 U.S.C. § 2072, to complete the two-step process.

This two-step requirement is confirmed by Olam v. Congress Mortgage Co., 68 F.Supp.2d 1110, 1121 (N.D.Cal. 1999)):

–In 28 U.S.C. § 652(d), “Congress directed each federal district court” to provide “for the confidentiality” of mediation processes by local rule; and

–Such local rules will operate, “until national rules are adopted under 28 U.S.C. § 2071 — a process not likely to be completed for years.”

The first step has been completed for nearly all of the Federal district courts and courts of appeals and for many of the bankruptcy courts.

Unfortunately, however, the second step has never been completed for any of these courts.  And nearly two decades have passed since Congress established the Federal confidentiality rule requirement.

The necessity for this two-step process is demonstrated by the Ninth Circuit Court of Appeals from this ruling in The Facebook, Inc. v. Pacific Northwest Software, Inc., 640 F.3d 1034, 1040-41 (9th Cir. 2011):

“A local rule, like any court order, can impose a duty of confidentiality as to any aspect of litigation, including mediation. . . .  But privileges are created by federal common law. See Fed.R.Evid. 501. It’s doubtful that a district court can augment the list of privileges by local rule.”

[Note:  See this article for further information on the Facebook, Inc., case.]

Conclusion

Mediation confidentiality is, obviously, crucial to the viability and effectiveness of mediation processes.  But confidentiality is in jeopardy under the Ninth Circuit’s Facebook, Inc., quote above.

–So . . . if we want to assure that mediation confidentiality is firmly established, the Federal-rule step (in the two-step process established by 28 U.S.C. § 652(d)) needs to be completed.

–And the completion of such final step needs to occur in both the Federal Rules of Civil procedure and the Federal Rules of Bankruptcy Procedure.

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