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Shhhh...Confidentiality and Mediation
 

Shhhh...Confidentiality and Mediation

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An examination of the legal and ethical rules about the role of confidentiality in mediations.

An examination of the legal and ethical rules about the role of confidentiality in mediations.

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  • No. All communications in mediation are confidential.\n
  • Yes. Statements show she wasn’t participating in mediation.\n
  • No. Mediation statements are confidential.\n
  • No. Statements made in mediation are confidential.\n
  • Yes. GJ is private and if charged/indicted, then public interest in criminal justice is greater than mediation confidentiality.\n
  • No. Statements made in mediation are confidential.\n
  • Duress could be maintained; mediation confidentiality didn’t preclude that challenge.\n
  • No confidentiality--court needs to examine the mediator’s conduct.\n
  • No. Sanctions inappropriate.\n
  • Attendance is not “subject matter” of the mediation and court can determine if its order was complied with.\n
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Shhhh...Confidentiality and Mediation Shhhh...Confidentiality and Mediation Presentation Transcript

  • Shhhh....Confidentiality& MediationGene Roberts
  • Dallas County StandardMediation Order Named parties shall be present during the entire mediation process and each corporate party must be represented by an executive officer with authority to negotiate a settlement.
  • Chapter 154Texas Civil Practiceand Remedies Code
  • “perhaps the broadest ADRconfidentiality provision in the country.”
  • TCPRC 154.053 “Standards and Duties ofImpartial Third Parties”(b) Unless expressly authorized by the disclosing party, theimpartial third party may not disclose to either party informationgiven in confidence by the other and shall at all times maintainconfidentiality with respect to communications relating to thesubject matter of the dispute.
  • TCPRC 154.053 “Standards and Duties ofImpartial Third Parties”(c) Unless the parties agree otherwise, all matters, including theconduct and demeanor of the parties and their counsel during thesettlement process, are confidential and may never be disclosedto anyone, including the appointing court.
  • Sec. 154.073. CONFIDENTIALITY OF CERTAINRECORDS AND COMMUNICATION
  • Sec. 154.073. CONFIDENTIALITY OF CERTAIN RECORDS AND COMMUNICATIONCommunications are confidential:
  • Sec. 154.073. CONFIDENTIALITY OF CERTAIN RECORDS AND COMMUNICATIONCommunications are confidential: Relate to the subject matter of any civil or criminal dispute made by a participant in an alternative dispute resolution procedure
  • Sec. 154.073. CONFIDENTIALITY OF CERTAIN RECORDS AND COMMUNICATIONCommunications are confidential: Relate to the subject matter of any civil or criminal dispute made by a participant in an alternative dispute resolution procedure Before or after the institution of formal judicial proceedings
  • Sec. 154.073. CONFIDENTIALITY OF CERTAIN RECORDS AND COMMUNICATIONCommunications are confidential: Relate to the subject matter of any civil or criminal dispute made by a participant in an alternative dispute resolution procedure Before or after the institution of formal judicial proceedings confidential, are not subject to disclosure, and may not be used as evidence against the participant in any judicial or administrative proceeding.
  • Sec. 154.073. CONFIDENTIALITY OF CERTAINRECORDS AND COMMUNICATIONS
  • Sec. 154.073. CONFIDENTIALITY OF CERTAINRECORDS AND COMMUNICATIONS Records
  • Sec. 154.073. CONFIDENTIALITY OF CERTAINRECORDS AND COMMUNICATIONS Records Any record made at an alternative dispute resolution procedure is confidential.
  • Sec. 154.073. CONFIDENTIALITY OF CERTAINRECORDS AND COMMUNICATIONS Records Any record made at an alternative dispute resolution procedure is confidential. Participants or the third party facilitating the procedure may not be required to testify in any proceedings relating to or arising out of the matter in dispute or be subject to process requiring disclosure of confidential information or data relating to or arising out of the matter in dispute.
  • (d) [An exception for governments who are parties to a MSAand Open Records]
  • (e) If this section conflicts with other legal requirementsfor disclosure of communications, records, or materials, theissue of confidentiality may be presented to the court havingjurisdiction of the proceedings to determine, in camera,whether the facts, circumstances, and context of thecommunications or materials sought to be disclosed warrant aprotective order of the court or whether the communications ormaterials are subject to disclosure.
  • Sec. 154.073. CONFIDENTIALITY OF CERTAINRECORDS AND COMMUNICATIONS(f) Each participant, including the impartial third party, to an alternative disputeresolution procedure is subject to the requirements of Subchapter B, Chapter261, Family Code, and Subchapter C, Chapter 48, Human Resources Code.
  • Family Code: A professional who has“cause to believe that achild’s physical or mental health or welfare has been adverselyaffected by abuse or neglect”shall make a report within 48hours.
  • Family Code: A professional who has“cause to believe that achild’s physical or mental health or welfare has been adverselyaffected by abuse or neglect”shall make a report within 48hours.Human Resources Code: “a person having cause to believe thatan elderly or disabled person is in the state of abuse, neglect, orexploitation, including a disabled person receiving services, shallreport the information to” the Department of Protective andRegulatory Services.
  • 2005Ethical Guidelines forMediators
  • “A mediator should protect theintegrity and confidentialityof the mediation of the process...[commencing] with thefirst communication to the mediator, is continuous innature, and does not terminate upon the conclusion of themediation.”
  • A mediator should inform and discuss with the participants that: the mediation is private it is confidential “to the extent provided by law.”
  • 8. Confidentiality Mediator not to reveal information that is privileged and confidential unless affected parties agree or as may be required by law.
  • Cmt (a) A mediator: should not permit recordings/transcripts to be made of mediation proceedings; should maintain confidentiality in storage/disposal of records and render anonymous all identifying information when materials are used for research, educational, or other informational purposes;
  • Should not disclose to other parties information given inconfidence by disclosing party and should maintainconfidentiality with respect to communications relating to thesubject matter of the dispute.Should report to court whether mediation occurred, andresulted in settlement, impasse, recess, or rescheduled.Should advise parties that disclosure is required and will bemade when required by law.
  • 2005AAA, ACR, ABAModel Standards of Conduct for Mediators
  • A mediator shall maintain the confidentiality of all informationobtained by the applicable law.
  • A mediator shall maintain the confidentiality of all informationobtained by the applicable law.If the parties to a mediation agree that the mediator maydisclose information obtained during the mediation, the mediatormay do so.
  • A mediator shall maintain the confidentiality of all informationobtained by the applicable law.If the parties to a mediation agree that the mediator maydisclose information obtained during the mediation, the mediatormay do so.A mediator should not communicate to any non-participantinformation about how the parties acted in the mediation. Amediator may report, if required, whether parties appeared at ascheduled mediation and whether or not the parties reached aresolution.
  • If a mediator participates in teaching, research orevaluation of mediation, the mediator should protect theanonymity of the parties and abide by their reasonableexpectations regarding confidentiality.
  • A mediator who meets with any persons in private sessionduring a mediation shall not convey directly or indirectly toany other person, any information that was obtainedduring that private session without the consent of thedisclosing person.
  • A mediator shall promote understandingamong the parties of the extent to which theparties will maintain confidentiality ofinformation they obtain in a mediation.
  • Depending on the circumstance of a mediation, theparties may have varying expectations regardingconfidentiality that a mediator should address. Theparties may make their own rules with respect toconfidentiality, or the accepted practice of anindividual mediator or institution may dictate aparticular set of expectations.
  • Why do we favor mediationconfidentiality?
  • Why is confidentiality important tomediatorsparties
  • Trust Between participants and the mediator
  • Mediator neutrality
  • Mediator neutrality Mediator testimony may mean no longer neutral
  • Mediator neutrality Mediator testimony may mean no longer neutralMediator finality
  • Exclusionary Rules FRE 408/TRE 408 Relevance Policy favoring settlement
  • Considerations(against confidentiality)
  • Considerations(against confidentiality)Abuse of the process
  • Considerations(against confidentiality)Abuse of the process Delay
  • Considerations(against confidentiality)Abuse of the process Delay Refuse to negotiate
  • Considerations(against confidentiality)Abuse of the process Delay Refuse to negotiate Misrepresentation of facts
  • Considerations(against confidentiality)
  • Considerations(against confidentiality)Mediator abuse
  • Considerations(against confidentiality)Mediator abuseOpen meetings/public records
  • Considerations(against confidentiality)Mediator abuseOpen meetings/public recordsMediator seeking advice
  • Considerations(against confidentiality)Mediator abuseOpen meetings/public recordsMediator seeking adviceMediator training/feedback
  • What does “confidential”mean?
  • What does “confidential”mean?Totally secret?
  • What does “confidential”mean?Totally secret?Generally protected from disclosure?
  • What does “confidential”mean?Totally secret?Generally protected from disclosure?Protection from subsequent disclosures in court? Inpublic? Anywhere and anytime?
  • Doe v Francis
  • AllegationsDoe v Francis
  • AllegationsCt Ordered MediationDoe v Francis
  • AllegationsCt Ordered Mediation “all statements confidential”Doe v Francis
  • AllegationsCt Ordered Mediation “all statements confidential”IssuesDoe v Francis
  • AllegationsCt Ordered Mediation “all statements confidential”Issues 4 hours lateDoe v Francis
  • AllegationsCt Ordered Mediation “all statements confidential”Issues 4 hours late Inappropriate clothingDoe v Francis
  • AllegationsCt Ordered Mediation “all statements confidential”Issues 4 hours late Inappropriate clothing AggressiveDoe v Francis
  • AllegationsCt Ordered Mediation “all statements confidential”Issues 4 hours late Inappropriate clothing AggressiveMtn SanctionsDoe v Francis
  • “Bury”/ “Ruin” not violence, but frustration (Fla Statno med confid to commit/attempt crime, threatenviolence)
  • “Bury”/ “Ruin” not violence, but frustration (Fla Statno med confid to commit/attempt crime, threatenviolence)
  • “Bury”/ “Ruin” not violence, but frustration (Fla Statno med confid to commit/attempt crime, threatenviolence)13 subsequent hrs
  • Conduct violated ct mediation orderJailed until properly participate, certified bymediator
  • Ct orders parties to mediation in “good faith” withrepresentative with full authority present. Ct conductshearing, with questions about authority, knowledge of thecase, mediation preparation, and phone communications.
  • Was court authorized to conduct this hearing and askthese questions?In re Acceptance Ins. Co., 33 SW3d 443 (Tex. App.--FortWorth 2000)
  • “I intend to use mediation to drive up the costs forthe other side.”Bethlehem School Dist. v. Zhou, E.D. Pa. July 23,2010
  • Atty gives advice to client during mediation. Client settles.Client later sues atty, claiming atty induced client to a lowersettlement than should have received.Cassell v. Superior Ct., No. S178914 (Cal. Jan. 13, 2011)
  • At mediation, participant admits to theft. Laterprosecuted, State uses that statement as proof.Williams v. State, 770 S.W.2d 948 (Tex. App.--Houston[1st Dist.] 1989, no writ hist.)
  • At mediation, there was evidence of potential criminalconduct. Can that evidence be presented to a grand jury?In re: Grand Jury Proceedings; U.S. v. Moczygemba, 143 F.3d 487 (5th Cir. 1998)
  • Party claims that his signature on MSA was by threatmade at mediation. Can he successfully claim “nocontract” because of duress?Rabe v. Dillard’s, Inc., 214 S.W.3d 767 (Tex. App.--Dallas2007).
  • Party claimed it signed MSA under duress, whenFDIC threatened criminal prosecution if the civilmatter wasn’t settled.FDIC v. White, 76 F. Supp.2d 736 (N.D. Tex.2000)
  • Parties claimed mediator bullied them intosigning the MSA.Allen v. Leal, 27 F.Supp. 2d 945 (S.D. Tex.1998)
  • Party refused to attend a mediation. Can the courtsanction the party?Hansen v. Sullivan, 886 S.W.2d 467 (Tex. App.--Houston[1st Dist.] 1994, no writ hist.)
  • Party attended mediation, but left early.In re Daley, 29 S.W.3d 915 (Tex. App.--Beaumont 2000).
  • What to do?
  • What to do? Review statute and case law regularly
  • What to do? Review statute and case law regularly Look at your confidentiality language in your agreements to mediate
  • What to do? Review statute and case law regularly Look at your confidentiality language in your agreements to mediate What’s covered? What’s not?
  • What to do? Review statute and case law regularly Look at your confidentiality language in your agreements to mediate What’s covered? What’s not? What does the mediation order say?
  • What to do? Review statute and case law regularly Look at your confidentiality language in your agreements to mediate What’s covered? What’s not? What does the mediation order say? Use protective language in your communications
  • What to do? Review statute and case law regularly Look at your confidentiality language in your agreements to mediate What’s covered? What’s not? What does the mediation order say? Use protective language in your communications (“This Communication is Confidential & Privileged and for Mediation Purposes Only”)
  • What to do? Review statute and case law regularly Look at your confidentiality language in your agreements to mediate What’s covered? What’s not? What does the mediation order say? Use protective language in your communications (“This Communication is Confidential & Privileged and for Mediation Purposes Only”) Be careful what you say to the other side during the mediation
  • What to do? Review statute and case law regularly Look at your confidentiality language in your agreements to mediate What’s covered? What’s not? What does the mediation order say? Use protective language in your communications (“This Communication is Confidential & Privileged and for Mediation Purposes Only”) Be careful what you say to the other side during the mediation Inform client
  • Contact Gene Roberts NorthTexasNegotiations.com gene@northtexasnegotiations.com @GeneRoberts linkedin.com/in/robertsgene