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