Glenn Currier c/o ACR ACR Training Section

Professional Development > ACR Trainers Resource Project > Mediation Case Scenarios > Scenarios: Confidentiality

ACR Trainers Resource Project

Mediation Case Scenarios:
Confidentiality

Confidentiality

Case Scenario 1: Personal Injury Case
Case Scenario 3: Business Dispute
Case Scenario 5: Personal Injury
Case Scenario 8: Employment
Case Scenario 10: Employment
Case Scenario 12: Employment
Case Scenario 13: Employment
Case Scenario 15: Not Specified
Case Scenario 17: Land Use
Case Scenario 18: Employment
Case Scenario 21: Employment
Case Scenario 22: Employment
Case Scenario 26: Farm Credit
Case Scenario 27: Commercial
Case Scenario 29: Employment, Sexual Harassment
Case Scenario 30: Employment
Case Scenario 32: Family

Case Scenario 1

Ethics Issue: Confidentiality
Type of Case Mediated: Personal Injury
Length: 117 words
Author: Corder/Thompson & Associates, www.corderthompson.com

Anderson filed a lawsuit charging that B. Brown, a mediator, violated the confidentiality of the mediation process. According to Anderson, Brown promised all the parties to a medical malpractice dispute that everything said in mediation was confidential unless it was discoverable by other means. Later Anderson learned that Brown had called the State Department of Child Protection to report suspected neglect of Anderson’s elderly mother. Brown did not inform Anderson that this was an exception to confidentiality or that Brown was going to make the report. Anderson claims that the resulting investigation cost a great deal of time and money and was extremely disruptive to the whole family. DCP found no evidence of neglect.

Case Scenario 3

Ethics Issue: Confidentiality
Type of Case Mediated: Business Dispute
Length: 150 words
Author: Corder/Thompson & Associates, www.corderthompson.com

E. Epson mediated a business dispute involving F. Franklin and G. Garrison. Two months later Franklin attended a mediation conference as a representative of a group of small businesses considering the value of mediation to resolve business disputes. Epson was one of the presenters in one of the sessions Franklin attended. During that session, Epson was describing a business case he had mediated and Franklin realized he was talking about the Franklin/Garrison case. Franklin was horrified by what she heard because in the course of the description of the case Epson revealed information that Franklin had asked not be disclosed to Garrison. Franklin realized that if Garrison had been present, Garrison would be in possession of information that could be really damaging to Franklin and to the ongoing relationship they had negotiated in the mediation. Franklin filed a lawsuit against Epson for revealing confidential information in a very public setting.

Case Scenario 5

Ethics Issue: Role of the Mediator, Confidentiality
Type of Case Mediated: Personal Injury
Length: 135 words
Author: Corder/Thompson & Associates, www.corderthompson.com

In a personal injury mediation, during a caucus with the attorneys for both sides J. Johnson, one of the attorneys proposed to K. Kendall, the other attorney that if they could come to a settlement favorable to Johnson’s client in this case, Johnson would guarantee a favorable settlement for a client of Kendall’s in another case. Kendall never responded to the request directly, but eventually Kendall’s client settled for less than L. Lieberman, the mediator, thought was fair settlement. Lieberman’s dilemma is how to handle this situation after the mediation. As a mediator Lieberman is obligated to keep all mediation communication confidential, unless there is an allegation of abuse or neglect to children, the elderly or the disabled. However, as an attorney, Lieberman has an obligation to report unethical attorney conduct to the State Bar.

Case Scenario 8

Ethics Issue: Confidentiality, Fairness of the Process
Type of Case Mediated: Employment
Length: 113 words
Author: Corder/Thompson & Associates, www.corderthompson.com

A supervisor and employee who have had a long standing conflict have agreed to try to mediate their differences because the conflict has begun to have a negative effect on the supervisor’s performance evaluation. They both became very angry and refused to continue meeting in the same room. In an individual session, you learn from the supervisor that she/he plans to give the employee some assignments that the employee will not be able to complete successfully so that he/she will have grounds for terminating the employee. The supervisor insists that you cannot reveal this information and that you must continue the mediation so that the employee won’t suspect what the supervisor is planning.

Case Scenario 10

Ethics Issue: Confidentiality, Avoiding Harm
Type of Case Mediated: Employment
Length: 69 words
Author: Corder/Thompson & Associates, www.corderthompson.com

During a caucus in a mediation between two co-workers, Party 1 mentions that Party 2 has made threatening comments suggesting that Party 1 knows where Party 2 lives and where Party 2's children go to school. Party 1 also tells you that Party 2 has said that he can get her fired. Party 1 refuses to bring this up in the joint session but insists that she is frightened.

Case Scenario 12

Ethics Issue: Confidentiality, Impartiality
Type of Case Mediated: Employment
Length: 116 words
Author: Corder/Thompson & Associates, www.corderthompson.com

Over the past six months you have mediated three cases involving one supervisor and various employees. In all three cases the parties were able to reach an agreement and the mediation program’s follow up suggests that the agreements are working. You have been asked to do still another mediation involving this supervisor. You have two concerns. First, you have heard rumors in the agency that you are seen as the “supervisor’s mediator.” Second, you have taken an intense dislike to this supervisor who you think is a terrible manager and is manipulative. You do not want to take this case, but you are not sure how to explain this in a way that doesn’t violate confidentiality.

Case Scenario 13

Ethics Issue: Confidentiality
Type of Case Mediated: Employment
Length: 82 words
Author: Corder/Thompson & Associates, www.corderthompson.com

One of the disputants calls you at home between the first and second session of the mediation. She/he wants to tell you that the other disputant has been telling everyone what happened in the mediation, even though both parties signed an agreement not to discuss the mediation with anyone at work. He/she says that the other party is also talking about what a terrible job you are doing as a mediator. She/he wants you do to do something to fix this problem.

Case Scenario 15

Ethics Issue: Confidentiality
Type of Case Mediated: Not Specified
Length: 67 words
Author: Corder/Thompson & Associates, www.corderthompson.com

During mediation the parties reach an agreement. However, as you begin to write the agreement, one of the parties becomes ill. The parties agree that there is no need to put it in writing and leave. Later, the agreement fails and the attorney for the party wishing to enforce the agreement reached during mediation, asks you to testify as to the terms reached. What do you do?

Case Scenario 17

Ethics Issue: Confidentiality
Type of Case Mediated: Land Use
Length: 122 words
Author: Charles Pou, chipbloc@aol.com

In a large, controversial land use dispute involving proposed construction of a new playground, a mediator has caucused with all parties. Following the last caucus, a safety engineer working for one defendant takes the mediator aside in the hall and tells him that she is wracked with guilt and concern over a document that she just came across. The document, which was not requested or disclosed in discovery, indicates that her employer inadvertently buried radioactive materials from a different job at the site of the proposed playground. The engineer tells the mediator that she may lose her job if this becomes public, but that she “just had to tell someone.” She strongly discourages the mediator from discussing this issue with anyone else.

Case Scenario 18

Ethics Issue: Confidentiality
Type of Case Mediated: Employment
Length: 163 words
Author: Charles Pou, chipbloc@aol.com

Mediator is mediating a bitter workplace dispute in which the complainant and then the respondent start to become increasingly agitated. The joint session surfaces great anger on both sides, actually raises the tension level, and then reaches impasse. Mediator has no success in calming parties in joint session.

VARIANT 1: Complainant states in a hastily-called caucus, “You know, that guy is really making me mad. I could kill him.”

VARIANT 2: Complainant states in a hastily-called caucus, “That guy is really making me mad. You know, I’ve got a gun in my car out in the parking lot!” He/she makes no overt threat to get or use the gun.

VARIANT 3: Complainant states in initial joint session, “You’re really making me mad. You know, I may look like a harmless little thing but I know how to deal with people like you.” He/she then opens purse/bag, removes a gun, silently sets it on the table in front of him/her, and awaits a reaction.

Case Scenario 21

Ethics Issue: Confidentiality
Type of Case Mediated: Employment
Length: 309 words
Author: Charles Pou, chipbloc@aol.com

The mediator -- who has recently begun to mediate as a community mediation program volunteer -- has just successfully helped the parties settle a case involving a novel EEO complaint involving a disabled complainant. The case involved people in a state agency.

VARIANT 1: The mediator’s colleague down the hall -- who is his/her mentor under the community mediation program -- drops by and the mediator asks for some pointers on how to do better next time. The mentor asks the mediator to describe strategies he/she employed, how he/she dealt with various difficult issues to promote a settlement, and other dispute-specific details.

VARIANT 2: The mediator actually works in the state agency in which the dispute arose, albeit in a different part of the agency and in a different city. Mediator’s supervisor comes into the mediator’s office and says that he/she has heard that the case was settled. He/she says that he wants to avoid similar trouble in his/her office and to keep the entire agency out of future cases of this sort, and asks the mediator to tell him what happened in the mediation, describe how the settlement was arrived at, and provide any advice on how to avoid future problems. When the mediator demurs, the supervisor states that the mediator/employee has a duty to disclose if s/he wishes to keep his/her job.

VARIANT 3: The same mediator receives a phone call from the agency’s Office of General Counsel informing him/her that that office is now investigating recent settlements under the EEO program for possible waste or fraud based on allegations that claimants have made misleading statements to obtain settlements. The investigator asks when he/she can meet with the mediator to get a complete report as to what happened in this mediation, and others he/she has conducted, and in particular to discuss how the settlement was arrived at.

Case Scenario 22

Ethics Issue: Confidentiality, Avoiding Harm
Type of Case Mediated: Employment
Length: 232 words
Author: Charles Pou, chipbloc@aol.com

An agency employee who serves as a collateral duty mediator achieves settlement in a case in which a former employee of a truck driver training school alleged that he had been fired by for being too zealous about educational standards. In caucus, the former employee tells the mediator in confidence that the school’s approach to training drivers was lax; in fact, he said, several “students” now on the road received diplomas without even attending a single class after making sizeable tuition payments.

VARIANT 1: The mediator receives a call from the state Department of Transportation’s Inspector General, who asks him/her to tell him all safety-related information that came out in the mediation. He reminds the neutral that there is a public interest in finding out anything that threatens highway safety, as well as in protecting the proper expenditure of federal grant dollars that the school has received.

VARIANT 2: Same scenario, except that the mediator is an employee of DOT, rather than another agency.

VARIANT 3: A similar call comes from a staff member of the House Committee on Highway Safety, who asks the mediator to tell her all safety-related information that came out in the mediation. She reminds the neutral that there is a public interest in finding out anything that threatens highway safety and offers to provide a subpoena for next week’s hearing if the neutral has any discomfort over testifying.

Case Scenario 26

Ethics Issue: Confidentiality
Type of Case Mediated: Farm Credit
Length: 139 words
Author: Charles Pou, chipbloc@aol.com

You have contracted with a state agricultural mediation program to mediate a dispute between a farmer and a federal agency that has guaranteed the farmer’s loan, which is in default. Upon arrival at the session, a representative of the state mediation program hands you standard forms, including an agreement to mediate that includes the following clause:

“Access to records. Notwithstanding the confidentiality of mediation sessions, mediators will notify all participants in writing at the beginning of the mediation session that the Agency, the Comptroller General of the United States, the Agricultural Mediation Program Administrator, or any of their representatives will have access to mediation records to conduct an audit or evaluation of mediation services funded in whole or in part by the Agency. The notice will be signed and dated by all participants and placed in the mediation file.”

Case Scenario 27

Ethics Issue: Informed Decision Making, Confidentiality
Type of Case Mediated: Commercial
Length: 156 words
Author: Charles Pou, chipbloc@aol.com

In a utility rate proceeding, you realize during a confidential caucus that an intervenor party representing large commercial interests has misunderstood a craftily-worded interrogatory response from the company. Based in part on the incorrect understanding, the intervenor is about to sign an agreement that will probably cost the commercial interests more than they anticipate. Though the company careful worded the response, it does not know the intervenor is being misled.

You know the information is being misconstrued based on confidential communications with the intervenor and the company.

What would you do? Would it make a difference if:

(1) The intervenor represented poor people instead of commercial interests?
(2) In your opinion, other aspects of the agreement were favorable to the intervenor?
(3) The intervenor is not represented by a lawyer?
(4) The company knew the intervenor was being tricked?
(5) You knew for certain that the commercial interests would be paying much more than they expected?

Case Scenario 29

Ethics Issue: Confidentiality
Type of Case Mediated: Employment, Sexual Harassment
Length: 197 words
Author: Charles Pou

Doug, a supervisor, and Maria, his employee, were engaged in a very bitter dispute in which Maria alleged that Doug sexually harassed her. They tried mediation with a very well respected mediator who was considered an expert in sexual harassment law. Unfortunately, it did not resolve the matter. During a separate caucus between the mediator and Doug, the mediator, doing some reality testing, pointedly questioned the strength of Doug’s case.

VARIANT 1: The EEOC subsequently issued a decision finding that Doug had not sexually harassed Maria. Doug was ecstatic and talked to his friends about the situation, mocking some of the “wrong” comments the mediator had made. Did Doug breach his confidentiality duties?

VARIANT 2: Maria has appealed the case. She has heard about Doug’s comments about what the mediator said to him, and wants to use the information in her brief. Can she?

VARIANT 3: Doug and Maria signed a confidentiality agreement in which they explicitly agreed that they would keep confidential all information discussed in the mediation. In violation of the agreement to mediate, Doug disclosed to his friends several of the comments that Maria had made in the mediation. What recourse does she have?

Case Scenario 30

Ethics Issue: Confidentiality
Type of Case Mediated: Employment
Length: 190 words
Author: Charles Pou, chipbloc@aol.com

Joan has alleged that Tanya discriminated against her when Tanya yet again gave Jim, rather than her, a career-building assignment. Both parties agreed to mediate the case. During a very relaxed joint session, Joan asked Tanya why she had given the assignment to Jim. Tanya answered that she thought Jim would do a good job and, as an afterthought, jokingly added “besides…he’s cute.”

Shortly afterward, the mediator asked to meet with Tanya in separate caucus. The mediator and Tanya did some reality testing on the strengths and weaknesses of her case.

The case does not settle and Joan requests a hearing at the EEOC.

VARIANT 1: In the hearing, Joan wants to testify that Tanya had said that Jim was “cute.” Can she?

VARIANT 2: Is there any way the parties could have protected the confidentiality of the communications they made to each other?

VARIANT 3: In the EEOC hearing, Joan wants to ask Tanya about what she said to the neutral in the separate caucus. Can she?

VARIANT 4: In the hearing, Joan wants to ask Tanya about what the neutral said to her in separate caucus. Can she?

Case Scenario 32

Ethics Issue: Confidentiality
Type of Case Mediated: Family
Length: 74 words
Author: Sue Bronson and Zena Zumeta, mediate@execpc.com

The judge in the case signed an order for Dan and Rose to mediate and has put in the order that the mediator is to report back to the judge as to whether Dan and Rose have bargained in good faith and whether the agreement is in the best interest of the children. This is your first referral from this judge. The judge always puts this in her orders and the other mediator complies.