Mediation Confidentiality: Mediator’s Information and Testimony

  By Donald L. Swanson The basic rule is this: the confidentiality of information held by a mediator is nearly-sacred. The case is In re Anonymous, 283 F.3d 627 (4th Cir. 2002). The question is whether a mediator may divulge, or be compelled to divulge, information from a mediation session. An underlying lawsuit is settled... Continue Reading →

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

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... Continue Reading →

How Frequently Does Malpractice Occur in Mediation?

By Donald L. Swanson California has been studying this question: should a malpractice exception be added to California's mediation confidentiality laws? If, for example, a mediating party sues his/her/its attorney for malpractice committed during a mediation session, should statements made during the mediation session be admissible evidence in the malpractice lawsuit? Or should such statements... Continue Reading →

How Mediation Confidentiality is Waived — A Ninth Circuit Decision

By: Donald L. Swanson Can mediation confidentiality be waived? The answer is, “Yes.” --That’s according to the U.S. Ninth Circuit Court of Appeals, from an unpublished “Memorandum” decision in Milhouse v. Travelers Commercial Insurance Co., Case No. 13-56959, 13-57029 (9th Cir., Feb. 23, 2016). Facts The Milhouse residence, located in California, had been destroyed in... Continue Reading →

Another Demonstration of Uncertainty Over Mediation Confidentiality in Bankruptcy

By: Donald L. Swanson "The court declines to adopt a new mediation privilege under the facts of this case." --Judge Cynthia A. Norton, U.S. Bankruptcy Judge  -- December 19, 2016 The case is In re Lake Lotawana Community Improvement District, a Chapter 9 municipale bankruptcy in the Western District of Missouri (Case No. 16-42357).  The issue... Continue Reading →

Mediation Confidentiality: The Second Circuit’s Sensible Standard for Disclosure

By: Donald L. Swanson “Confidentiality is an important feature” of mediation, because it "promotes the free flow of information that may result in the settlement of a dispute." “We vigorously enforce the confidentiality provisions” of our own mediation system “because we believe that confidentiality is essential" to its “vitality and effectiveness.” U.S. Second Circuit Court... Continue Reading →

A List of Bankruptcy Districts that HAVE and HAVE-NOT Adopted Local Mediation Rules

By: Donald L. Swanson I've been asked many times for the number of bankruptcy court districts who, (i) HAVE adopted local rules on mediation, and (ii) HAVE-NOT adopted such rules. --The have-not courts, it seems, are hanging on to the past -- for reasons that are unknown . . . and not readily apparent. Initial... Continue Reading →

Five Reasons Why Mediation Must be Added to the Federal Bankruptcy Rules

By: Donald L. Swanson Mediation needs to be included — explicitly and by name — in the Federal Rules of Bankruptcy Procedure. Mediation Authorization and Confidentiality The new mediation provision must cover two specific subject areas: (i) mediation authorization, and (ii) mediation confidentiality. Authorization.  If a city is a Chapter 9 debtor in a jurisdiction... Continue Reading →

A Final Step to Uphold Mediation Confidentiality in Federal Courts

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... Continue Reading →

There’s No-Such-Thing as a “Mediation Privilege” in Federal Court?!

By: Donald L. Swanson It's a beautiful scene:  Federal courts applying and enforcing their local rules on mediation confidentiality. --Nearly all U.S. District Courts and U.S. Circuit Courts of Appeals, and many Bankruptcy Courts, have such local rules. But then the Ninth Circuit Court of Appeals comes along with a bombshell.  It suggests that local... Continue Reading →

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