“The Walls of the Mediation Room are Remarkably Transparent”: From a Study on Mediation Confidentiality

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Remarkably Transparent Walls

By Donald L. Swanson

“In sum, the walls of the mediation room are remarkably transparent.”

— James Coben & Peter Thompson

The State of California is studying mediation confidentiality in the context of legal malpractice disputes.

Suprise # 1

A surprise of the study is from a 2006 law review article by Coben and Thompson titled,  Disputing Irony: A Systematic Look at Litigation About Mediation.  The surprise is this:

In actual practice, mediation confidentiality is often ignored.

Coben and Thompson reach the following conclusions in their article:

–there is a “large volume” of reported court opinions in which “courts considered detailed evidence of what transpired in mediations without a confidentiality issue being raised—either by the parties or sua sponte by the court.”

–“uncontested mediation disclosures occurred in thirty percent of all decisions in the database, cutting across jurisdiction, level of court, underlying subject matter and litigated mediation issues.”

–Disclosures of mediation information in court include:

forty-five opinions in which mediators offer testimony,

sixty-five opinions where others offer evidence about mediators’ statements or actions, and

266 opinions where parties or lawyers offer evidence of their own mediation communications and conduct

And all of these disclosures are “without objection or comment.”

So much for confidentiality as a highest-priority in mediation cases.

Surprise # 2

Here is another surprising set of findings by Coben and Thompson:

“Courts expressly refused to protect mediation confidentiality in sixty opinions.”

Of those sixty, “few” involve “a reasoned weighing of the pros and cons of compromising the mediation process.”

Instead, the “admissibility or discovery of mediation information” is “routinely justified” on such grounds as:

–waiver and consent

–the information is not “confidential”

–the process is “not mediation”

–the provider of the evidence is “not a mediator”

–the evidence is offered “for a permissible purpose”

–the evidence is “not material” or its introduction “constituted harmless error.”

Conclusion

Total or nearly-complete confidentiality in mediation is far from reality.  Should something be done about this?

 

5 thoughts on ““The Walls of the Mediation Room are Remarkably Transparent”: From a Study on Mediation Confidentiality

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  1. Thé parties décide what will remain confidential with the help of their counsellors or laxyers. Transparency is somewhat diferrent from confidentiality. Confidentiality hras something to do with confidence. . you should relly on. Confidentiality is essentiel.

    Liked by 1 person

  2. Certainly, the article suggests that mediation confidentiality is not honored with the same diligence from place to place. I am curious whether these reported cases are from jurisdictions like California where mediation confidentiality is an absolute versus jurisdictions where exceptions to confidentiality are common. The article doesn’t give those specifics. As such, the article merely shows that confidentiality is treated differently in different jurisdictions. That is not surprising at all.

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  3. In Australian law there are several well known and well justified exceptions to the confidentiality rule in mediation. As an example, our courts will permit evidence of what transpired in a mediation for the purposes of determining whether the parties reached an enforceable agreement. In Boardman v Boardman [2012] NSWSC 1257 (18th October, 2012) the defendant to a contested deceased estate case sought specific performance of an agreement reached at mediation where the matter had been settled but the settlement had not been fully effectuated by the signing of the necessary consent orders to bring a conclusion to the proceedings. The plaintiff had agreed to settle at the mediation but later reneged on the agreement and refused to sign the consent orders. In that case the Court permitted evidence of what was said at the mediation in order to be satisfied that the plaintiff’s will had not been overborn and that he had given his informed consent to the agreed outcome. I think there are compelling reasons of public policy why these sorts of exceptions to absolute confidentiality should be upheld if mediation is to retain its integrity and not be allowed to become an instrument of oppression or obfuscation. The other observation I would make, with respect, is that mediation is not simply “a process” which is amenable to the application of a set of rules by which its efficacy is to be judged. Many mediations result in agreed outcomes and resolution of the dispute precisely because the mediator and the parties are able to engage in innovative thinking about how their dispute is to be handled. I have not read the Coben and Thompson study but the report of it reads almost as if it was a statistical survey setting out the number of cases where confidentiality was apparently not honoured by the courts. In order to assess the impact of those decisions on the overall confidentiality of mediation it would have been helpful to know the basis upon which evidence of the mediation was allowed in each case and whether, in each case reviewed, the disclosure to the court of otherwise confidential material is justified on public policy grounds.

    Liked by 1 person

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