What To Do When A Party Is Secretly Taping A Mediation Session

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“I’ll do what I want, and I’ll tape if I will”

By: Donald L. Swanson

The State of New York has a “Mediator Ethics Advisory Committee.” A mediator asked this Committee for an advisory opinion on what to do in the following circumstances (here’s its opinion).

Facts

During a private session, the mediator notices that a party has a tape recorder on her lap. The mediator asks if she has been taping the session. She says, “Yes,” explaining that she isn’t “a good note taker” and doesn’t want to “miss anything important.”

The mediator asks whether she is willing to disclose the recording to the other party and ask for consent. She says, “No,” because the recording is for her own purposes and will not be used in any other way. And she refuses to discuss the matter further.

Two Questions

The mediator is unsure how to proceed and puts these two questions to New York’s Mediator Ethics Advisory Committee:

  1. Should the mediator continue with the mediation?
  2. If the mediator terminates the mediation, can the taping reason for termination be disclosed to the other party?

Committee’s Ruling

Here’s what the Committee decides:

  1. The mediator shall not continue with the mediation;
  2. The mediator shall disclose to the parties in joint session that the mediation is terminated; and
  3. The mediator may disclose that the taping is the reason for termination.

Committee’s Rationale

The taping party rebuffed the mediator’s efforts, refused to disclose her taping efforts, refused to seek the other party’s consent, and refused to discuss the matter further. Accordingly, her actions conflict with the following mediation standards:

  • The other party’s right to self-determination;
  • The quality of the mediation process; and
  • the mediator’s impartiality.

Here are the Committee’s thoughts on each of the three standards.

—Self-Determination

Parties must be able to exercise self-determination at every stage of a mediation.

“While quite unusual,” tape recording is an issue for the parties to discuss up front. If they do that, they can make informed decisions on taping, such as whether taping should occur and how the tape might be used. They can also assess how taping might affect the candor of the parties in mediation discussions.

If the taping party is unwilling to share that taping has already occurred, the taped party’s right to self-determination cannot be assured.

—Quality of the Process

Under New York law, a mediator must terminate a mediation when a participant’s conduct jeopardizes “sustaining a quality mediation process.”

The taping party’s refusal to disclose the taping to the other side conflicts with this “quality mediation” standard. A taped party, unaware of the taping, cannot participate effectively in the mediation.

A mediator who becomes aware of surreptitious taping must explore the circumstances and seek solutions. Here, the mediator did just that—without an acceptable response from the taping party.

—Mediator Impartiality

If the mediator were to proceed, without informing the other party of the taping, an unacceptable appearance of mediator partiality could arise.

The taped party might, later, find out about the taping, which discovery would have an unacceptable impact on the taped party’s mediation experience.

Disclosure Issue

May the mediator disclose to the other party the reason why the mediation is being terminated?

Yes, the Committee declares. The mediator may disclose the taping to the taped party as the reason for terminating the mediation, if the mediator wishes to do so. Here’s why:

  1. The taped party has a reasonable expectation that communications during the course of mediation are confidential, and the secret taping frustrates that expectation.
  2. However, the mediator became aware of the taping during a private session, accompanied by an expression of secretive intent; so, the taping party also has an expectation of confidentiality about the taping—this expectation, however, is not reasonable under the circumstances.

Accordingly, the mediator must balance the competing expectations of confidentiality held by the two parties. The result is that the mediator may disclose the taping to the other party.

Conclusion

Here’s a thank you to the Committee for its analysis and wisdom on this issue.

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